Montclair Municipal Code Art. III Adult Business Performer License

It is the purpose and intent of this chapter to provide for the licensing of adult business performers in order to promote the health, safety, and general welfare of the City. The goals of the performer licensing provisions are as follows: (1) to protect minors by requiring that all performers be over the age of 18 years; (2) to assure the correct identification of persons performing in adult businesses; (3) to enable the City to deploy law enforcement resources effectively; and (4) to detect and discourage the involvement of crime in adult businesses by precluding the licensing of performers with certain sex-related convictions in a set time period. It is neither the intent nor the effect of these regulations to invade the privacy of performers or to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor the effect of these regulations to restrict or deny access by adults to communicative materials or to deny access by the distributors or exhibitors of adult businesses to their intended lawful market. Nothing in these regulations is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof.

(Ord. 06-873 § 4 (part))

In addition to any other definitions contained in the Municipal Code, all words and phrases included in this chapter shall be consistent with the definitions in Section 11.40.030 of this Code, unless it is clearly apparent from the context that another meaning is intended.

(Ord. 06-873 § 4 (part))

A. No performer shall be employed, hired, engaged, or otherwise retained in an adult business as defined in Section 11.40.030 of this Code to participate in or give any live performance displaying "specified anatomical areas" or "specified sexual activities" without first having a valid adult business performer license issued by the City.

B. The Chief of Police or his or her designee shall grant, deny, and renew adult business performer licenses in accordance with these regulations.

C. License applicants shall file a written, signed, and verified application or renewal application on a form provided by the Chief of Police. Such application shall contain the following information:

1. The license applicant's legal name and any other names (including "stage names" and aliases) used by the applicant;

2. Principal place of residence;

3. Age, date and place of birth;

4. Height, weight, hair and eye color, and tattoo descriptions and locations;

5. Each present and/or proposed business address(es) and telephone number(s) of the establishments at which the applicant intends to work;

6. Driver's license or identification number and state of issuance;

7. Social security number;

8. Satisfactory written proof that the license applicant is a least 18 years of age;

9. The license applicant's fingerprints on a form provided by the Montclair Police Department and two color 2-inch by 2-inch photographs clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant. Fingerprints and photographs shall be taken within six months of the date of application;

10. Whether the license applicant has pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex-related offense, and (a) less than two years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) less than five years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of conviction, whichever is the later date, if the conviction is a felony; or (c) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period;

11. If the application is made for the purpose of renewing a license, the license applicant shall attach a copy of the license to be renewed.

D. The information provided in subsection C of this section which is personal, private, confidential, or the disclosure of which could expose the applicant to the risk of harm will not be disclosed under the California Public Records Act. Such information includes, but is not limited to, the applicant's residence address, telephone number, date of birth and age, driver's license and social security number. The City Council, in adopting the application and licensing and/or permit system set forth in this article, has determined in accordance with Government Code Section 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy, confidentiality or security interest are protected. The City Clerk shall cause the above-mentioned information to be redacted from any copy of a completed application form made available to any member of the public.

E. The completed application shall be accompanied by a nonrefundable application fee and an annual license fee. The amount of such fees shall be as set forth in the schedule of fees established by resolution from time to time by the City Council.

F. The completeness of an application shall be determined within two working days by the Chief of Police or his or her designee. The Chief of Police or his or her designee must be available during normal working hours, Monday through Friday, to accept adult business performer applications. If the Chief of Police determines that the application is incomplete, the Chief of Police shall immediately inform the applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Upon receipt of a completed adult business performer application and payment of the license fee specified in subsection E of this section, the Chief of Police shall immediately issue a temporary license which shall expire of its own accord 14 business days from the date of issuance; however, if the results of the fingerprint investigation have not been received at the expiration of the period, such temporary license shall automatically renew for a 14 business day period, until the results are received, or shall be extended as provided in Section 4.52.110 of this chapter.

G. This temporary adult business performer license shall authorize a performer to commence performance at an adult business establishment that possesses a valid adult business license authorized to provide adult live entertainment.

H. The fact that a license applicant possesses other types of State or City permits or licenses does not exempt the license applicant from the requirement of obtaining an adult business performer license.

(Ord. 06-873 § 4 (part))

A. Upon submission of a completed application, payment of license fees, and issuance of a temporary adult business performer license pursuant to Section 4.52.100 of this chapter, the Chief of Police shall immediately stamp the application "Received" and in conjunction with City staff, including members of the Police Department, shall promptly investigate the information contained in the application to determine whether the license applicant should be issued an adult business performer license.

B. Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The Chief of Police's decision to grant or deny the adult business performer license shall be made within 14 business days from the date the temporary license was issued. In the event the Chief of Police is unable to complete the investigation within 14 business days, he or she shall promptly notify the license applicant and extend the temporary license for up to 10 additional business days. In no case shall the investigation exceed 24 days, nor shall the decision to grant or deny the license application be made after the expiration of the temporary license.

C. The Chief of Police shall render a written decision to grant or deny the license within the time period set forth in subsection B of this section. Such decision shall be mailed, first class postage prepaid, or hand delivered to the applicant, within the foregoing 14-day period (or 24-day period if extended pursuant to subsection B of this section), at the address provided by the applicant in the application.

D. The Chief of Police shall notify the applicant as follows:

1. The Chief of Police shall write or stamp "Granted" or "Denied" on the application and date and sign such notation.

2. If the application is denied, the Chief of Police shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the license applicant may appeal the denial to the City Manager. The City Manager or a Designated Hearing Officer shall conduct a hearing as described in Section 4.52.120 of this chapter.

3. If the application is granted, the Chief of Police shall attach to the application an adult business performer license.

4. The application, as acted upon, and the license, if any, shall be placed in the United States mail, first class postage prepaid, or hand delivered, addressed to the license applicant at the residence address stated in the application in accordance with the time frames established herein.

E. The Chief of Police shall grant the application and issue the license unless the application is denied based on one of the grounds set forth in subsection F of this section.

F. The Chief of Police shall deny the application based on any of the following grounds:

1. The license applicant has made false, misleading, or fraudulent statements of material fact in the application for an adult business performer license.

2. The license applicant is under 18 years of age.

3. The adult business performer license is to be used for performing in a business prohibited by laws of the State or City or a business that does not have a valid adult business license.

4. The license applicant has pled guilty, nolo contendere or been convicted of an offense classified by this or any other state as a sex-related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor, or (b) less than five years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period.

G. Failure of the Chief of Police to render a decision on the license within the time frames established by this section shall be deemed to constitute an approval.

H. Each adult business performer license, other than the temporary license described in Section 4.52.100(F) of this chapter, shall expire one year from the date of issuance and may be renewed only by filing with the Chief of Police a written request for renewal, accompanied by the annual license fee and a copy of the license to be renewed. If such application conforms to the previously approved application and there has been no change with respect to the license holder being convicted of any crime classified by this or any other state as a sex-related offense, the Chief of Police or his or her designee shall renew the license for one year. Any plea to or conviction of a sex-related offense requires the renewal application to be set for hearing before the City Manager in accordance with the provisions of Section 4.52.120(A) of this chapter. The request for renewal shall be made at least 30 days before the expiration date of the license. Applications for renewal shall be acted upon as provided herein for action upon applications for license. The Chief of Police's denial of a renewal application is subject to the hearing provisions of Section 4.52.120 of this chapter.

(Ord. 06-873 § 4 (part))

A. On determining that grounds for license suspension or revocation exist, the Chief of Police or his or her designee shall furnish written notice of the proposed suspension or revocation to the license holder. Such notice shall set forth the time and place of a hearing and the ground or grounds upon which the hearing is based, the pertinent Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the license holder, or shall be delivered to the license holder personally, at least 10 days prior to the hearing date. Hearings pursuant to this section shall be conducted by the City Manager or a Designated Hearing Officer designated by him or her which can include a retired judge. Hearings pursuant to this section shall be conducted in accordance with procedures established by the City Manager or Designated Hearing Officer but, at a minimum shall include the following:

1. All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel.

2. The City Manager or Designated Hearing Officer shall not be bound by the formal rules of evidence.

3. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness at the request of the license holder. Extensions of time or continuances sought by a license holder shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on license suspensions or revocations.

4. The City Manager's or Designated Hearing Officer's decision shall be final and there shall be no right of appeal from this decision.

B. A license may be revoked, based on any of the following causes arising from the acts or omissions of the license holder:

1. The licensee has made any false, misleading, or fraudulent statements of material fact in the application for a performer license;

2. The licensee has pled guilty, nolo contendere or been convicted of an offense classified by this or any other state as a sex-related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor, or (b) less than five years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period;

3. Failure to comply with the operating standards of Chapter 4.53 of this title or the requirements of this chapter.

C. After conducting the hearing in accordance with the provisions of this section, if the City Manager or Designated Hearing Officer finds and determines that there are grounds for suspension or revocation, the City Manager or Designated Hearing Officer shall impose one of the following:

1. Suspension of the license for a specified period not to exceed six months;

2. Revocation of the license.

The City Manager or Designated Hearing Officer shall render a written decision that shall be hand delivered or overnight mailed to the license holder within five days of the public hearing.

D. In the event a license is revoked pursuant to this section, another adult business license to operate an adult business shall not be granted to the licensee within 12 months after the date of such revocation.

E. The time for a court challenge to a decision of the City Manager or Designated Hearing Officer is governed by California Code of Civil Procedure Section 1094.8.

F. Notice of the City Manager's or Designated Hearing Officer's decision and its findings shall include citation to California Code of Civil Procedure Section 1094.8.

G. Any applicant or license holder whose license has been suspended or revoked pursuant to this section shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure Section 1094.8.

(Ord. 06-873 § 4 (part))

The Chief of Police shall provide each adult business performer required to have an adult business performer license pursuant to this chapter with an identification card containing the name, business address, photograph, and license number of such performer. Every performer shall have such card available for inspection at all times during which he or she is on the premises of the adult business at which he or she performs.

(Ord. 06-873 § 4 (part))

Every owner, operator, manager or permittee in charge or in control of an adult business as defined in Section 11.40.030 of this Code, which provides any live performance displaying "specified anatomical areas" or "specified sexual activities" must maintain a register of all persons so performing on the premises and their adult business performer permit numbers. Such register shall be available for inspection during regular business hours by any police officer of the City.

(Ord. 06-873 § 4 (part))

No adult business performer license may be sold, transferred, or assigned by any licensee or by operation of law, to any other person, group, partnership, corporation, or any other entity. Any such sale, transfer, or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the adult business performer license, and the license thereafter shall be null and void.

(Ord. 06-873 § 4 (part))