Morgan Hill Municipal Code Ch. 5.60 Adult Businesses Permit System and Standards

In order to retain law-abiding management and operation of "adult businesses," as defined Title 18, the owners of all such businesses, prior to establishment of their business use, shall obtain police permits as defined and described herein. The purpose of issuance of police permits is to protect adult business patrons and the community from management of adult businesses which may have a history of being convicted of one or more specified criminal acts, or may be involved with organized crime, including prostitution, child pornography, or related crimes.

A. Permit—Application.

1. Any person required to obtain a permit pursuant to this chapter shall file a written application therefor with the chief of police. The term "chief of police" used herein means either the actual chief of police or a person designated by the city manager. The chief of police shall prepare written application forms for such permits which shall require thereon such information as he or she deems necessary to carry out the purposes of this chapter, including, but not limited to, the following:

a. The exact nature of the adult business proposed to be conducted;

b. The present name and address of each applicant and each owner, officer, or stockholder with over ten percent of the stock in a corporation, and previous addresses of each applicant and owner for a period of three years immediately prior to the date of application, and the dates of residence at each;

c. Written proof that each applicant and each owner is at least eighteen years of age;

d. Sufficient personal description from valid identification for each applicant to verify identity;

e. The business, occupation or employment history of each applicant and each owner for three years immediately preceding the date of application; and

f. The names and residence addresses of all owners and all persons currently employed or intended to be employed in the place of entertainment, regardless of the nature of employment (including independent contractors), the proposed actual nature of the work performed or to be performed, and fingerprints from each applicant and all such employees.

2. A filing and processing fee as established by a resolution of the city council shall be paid contemporaneously with the filing of the permit application.

B. Permit Investigation. The chief of police, upon receipt of a written application for a permit, shall conduct an appropriate investigation to determine whether the permit should be issued in accordance with the provisions of this chapter. Based on his or her investigation, the chief of police shall issue a permit if he or she finds that the operation proposed by the application complies with the applicable laws, including, but not limited to, the building, zoning, and health regulations of the city, and the applicant, and any employee of the applicant, has not been convicted in a court of competent jurisdiction, by final judgment, of any of the following:

1. An offense involving the presentation, exhibition, or performance of an obscene production, motion picture, play, or act;

2. An offense involving lewd conduct or sexual relations on the premises of an adult business or at any other place where such actions may be prohibited by law;

3. An offense involving misconduct with children;

4. Any other "specified criminal act" as defined in this chapter, including, but not limited to, sexual assault, prostitution, pimping or pandering; or

5. An offense under this chapter.

C. The chief of police shall not issue a permit if the applicant has made any false, misleading or fraudulent statement in the permit application or any other document required by the city.

D. Conformity with Zoning Regulations. No police permit shall be issued to a business which is outside one of the industrial zoning districts identified in Title 18 except for those which are found to be nonconforming uses.

E. Permit Conditions. Permits may be issued conditionally in order to insure compliance with the provisions of this chapter.

F. Permit—Denial. If the chief of police finds any of the facts, as set forth in Sections 5.60.010(B), (C), and (D) of this chapter are present, he or she shall decline to issue the permit.

G. Permit—Notification of Decision. The chief of police shall make a decision with reference to a permit application no later than sixty calendar days following submission of an application containing all information required by this chapter. The chief of police shall give written notice of his or her decision to the applicant and to any other person requesting such notice.

H. Permit—Denial—Appeal Procedures.

1. Any person aggrieved by the decision of the chief of police with reference to the issuance, conditional issuance, or denial of a permit shall have a right to appeal. An appeal must be filed within fifteen days after the service of notice of decision to the applicant by the city. A letter of appeal must briefly state therein the basis for such appeal, together with a filing and processing fee as established by a resolution of the city council.

2. Upon receipt of such letter of appeal and fee, the city clerk shall set the matter for consideration by the city council at its next regularly scheduled meeting. The city clerk shall give the appealing party and any other person, including the applicant if the applicant is not also the appealing party, at least five days written notice of the time and place of such hearing.

3. At the time and place set for the hearing upon the appeal from the decision of the chief of police, the council shall give the appealing party, and any other interested party, a reasonable opportunity to be heard in order to show cause why the determination of the chief of police should not be upheld. In all such cases, the burden of proof to show that the action taken was arbitrary, capricious, or in excess of the chief's authority shall be upon the appealing party. The determination of the city council shall be final and conclusive.

I. Permit—Suspension or Revocation.

1. The chief of police shall suspend any permit issued under this chapter if he or she finds any fact that would require an application for permit to be denied under Section 5.60.010 of this chapter or for any other violation of this chapter. In the case of such suspension, the chief of police shall serve the permittee with a written order of suspension which shall state the reasons therefor. The order shall be effective immediately if personally served, or forty-eight hours after the same has been deposited in the course of transmission in the United States Postal Service. Immediately upon such order becoming effective, the permittee shall cease all operations under the permit.

2. The order of suspension shall be deemed a revocation of the permit to which it relates unless the permittee, within fifteen days after its effective date, files an appeal from the order in the manner set forth in this chapter. Where an appeal is taken, the order shall be stayed pending a determination thereon by the city council. The determination shall be final and conclusive.

J. Permit—Posting Required. Permits issued pursuant to this chapter shall be posted on the premises where the business or enterprise for which the permit is issued is conducted and shall remain so posted during the period the permit shall be in force.

K. Changes of Operation After the Permit Issuance.

1. Permits issued under this chapter shall be in force and effect for a period of three years following issuance.

2. A permittee shall provide, to the chief of police, any and all information required under Section 5.60.010 of this chapter, as to any employee five days prior to employment.

3. No permit issued under the provisions of this chapter shall be assigned or transferred in any manner, nor shall any person, other than those therein mentioned, engage in the enterprise for which the permit is issued. As used in this chapter, "transfer" includes, but is not limited to, any modification of a business entity operating an adult business or otherwise required to be disclosed pursuant to Section 5.60.010(A) of this chapter, including the transfer of ten percent or more of the stock of any corporation.

L. Violation—Penalty. It is unlawful to violate any provision of this chapter.

(Ord. 1152 N.S. § 1 (part), 1993)

(Ord. No. 2276 N.S., § 14, 5-2-2018)

Each and every adult business shall be operated in compliance with the standards set forth as follows:

A. Hours of Operation. No adult business shall be operated before nine o'clock in the morning nor after eleven o'clock in the evening, in order to prevent gathering of patrons at hours which may be disruptive to nearby land uses.

B. Advertising and Display. The city council finds that adult businesses should be conducted in a manner so as to not unduly impact nearby businesses or land uses. Therefore, signs, window displays and building painting and colors shall be restrained, not in garish colors or textures, in a manner similar to other businesses in the area, and shall not depict or advertise specified anatomical areas or specified sexual activities nor specific products, instruments, devices or other merchandise in connection with specified sexual activities. Any advertisements, signs, displays of merchandise or any other exhibit depicting adult business activities placed within the interior of buildings or premises such as waiting areas, office area and other areas behind windows shall not show specified anatomical areas or specified sexual activities. All such areas shall be arranged or screened to prevent public viewing from outside such buildings or premises. No outdoor loudspeakers or other outdoor sound equipment advertising or directing attention to an adult entertainment use are allowed.

C. Minors. No minor under the age of eighteen may be admitted to an adult business. The owner or manager of an adult business shall require a California driver's license or other equivalent identification from any patron who appears to be under age thirty.

D. Open Inspection. The police department and any other investigating officials of the city shall have the right to enter all areas which are open to the public in adult businesses from time to time during regular business hours, to make reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing, health regulations or provisions of this chapter. A warrant shall be obtained whenever required by law. This section applies to all areas of an adult business, including massage rooms, minitheater or peep shows and any other areas of the business. Notice of this right to enter shall be posted conspicuously in the lobby or other entrance of the building.

E. Security and Lighting. An on-site security program, including required interior and exterior lighting plans, shall be prepared and implemented and include, when directed by the chief of police, provision of on-site security personnel during all business hours, which security personnel shall be licensed in accordance with the California Business and Professions Code and Section 5.40.010 et seq. of the Morgan Hill Municipal Code. In addition, for all adult businesses whether or not security guards are required, the parking areas of each adult business shall be illuminated in all evening hours with at least one footcandle of lighting, measured at ground level on any exterior part of the premises; and in addition, all interior portions of the adult business, except any areas devoted to mini motion picture theaters ("peep shows") or motion picture theaters, shall be illuminated during all hours of operation providing a minimum illumination of two footcandles of light.

(Ord. 1152 N.S. § 1 (part), 1993)