Mountain View Municipal Code Art. V Adult Entertainment Establishments

It is the purpose and intent of this article to provide for the orderly regulation of adult entertainment establishments, as defined herein, in the interests of the public health, safety and welfare by providing certain minimum building, sanitation, health and related standards and regulations for adult entertainment establishments, and by providing standards for operators of adult entertainment establishments.

(Ord. No. 3.83, 1/25/83.)

For the purpose of this article, unless the context clearly requires a different meaning, the words, terms and phrases hereafter set forth shall have the meanings given them in this section.

a. "Adult bookstore" is a building or portion thereof used by an establishment having as a substantial or significant portion of its stock and trade for sale to the public or certain members thereof, books, magazines and other publications which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," as hereinafter defined.

b. "Adult motion picture theater" is a building or portion thereof or area, open or enclosed, used for the presentation of motion pictures, either on a large screen or small machines, all of which is distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," as hereinafter defined, for observation by patrons or customers.

c. "Adult cabaret" is a building or portion thereof or area used for the presentation or exhibition or featuring of dancers, strippers, male or female impersonators or similar entertainers for observation by patrons or customers in conjunction with the serving of food or alcoholic beverages.

d. "Adult entertainment enterprise" means:

(1) Any business activity wherein is furnished for a fee or charge or other like consideration the opportunity to paint, feel, handle, touch, be in the presence of, be entertained by the unclothed body or the unclothed portion of the body of another person, or to observe, view or photograph any such activity, and shall include but not be limited to the following business activities and activities similar thereto: nude encounter studios, nude dance studios, nude exhibitions, peep shows, nude wrestling centers, and nude art or photograph studios. "Unclothed portion of the body" shall mean a state of dress so as to expose (A) the female breast below a point immediately above the top of the areola, (B) male or female genitals, (C) pubic areas, (D) buttocks, or (E) female breasts with only the nipple and areola covered.

(2) Any business activity wherein a substantial part of the commercial operation consists of the sale or dissemination of paraphernalia and apparatus purporting to aid or assist in the stimulation and/or performance of sexual activity.

(3) The following are specifically excluded from the meaning of the term, "adult entertainment enterprise":

(A) Physicians, surgeons, chiropractors, osteopaths or physical therapists who are duly licensed to practice their respective professions in the State of California;

(B) Nurses registered under the laws of the State of California;

(C) Barbers and beauticians who are duly licensed under the laws of the State of California;

(D) Any activity conducted or sponsored by any school district or other public agency; and

(E) Any activity conducted by a person pursuant to any license issued by the State of California or any agency thereof charged with the responsibility of licensing, prescribing standards for and supervising such activity or profession.

e. "Adult entertainment establishment" means any establishment or place of business where any person engages in, conducts, operates, carries on or permits to be engaged in, conducted, operated or carried on any adult entertainment enterprise, adult bookstore, adult motion picture theater, adult cabaret or adult theater regardless of whether any other use is also conducted on the premises.

f. "Adult theater" is a building or portion thereof or area, open or enclosed, used for the presentation of theatrical or vaudeville performances or similar forms of artistic expression, where such performances are not incidental to the promoting of the sale of food, drink or other merchandise, and where such performances are distinguished or characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," as hereinafter defined for observation by patrons or customers.

g. "Employee" means every owner, partner, manager, supervisor, and worker, whether paid or not, who renders personal services of any nature in the conduct of an adult entertainment establishment.

h. "License" means the license to operate an adult entertainment establishment required by this article.

i. "Specified sexual activities" are:

(1) Human genitals in a state of sexual stimulation or arousal;

(2) Acts of human masturbation, sexual intercourse or sodomy; and

(3) Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast.

j. "Specified anatomical areas" are:

(1) Less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately above the top of the areola; and

(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

k. The foregoing definitions are generic. The uses and businesses governed by these definitions include any other use or business, regardless of how named or advertised, that is of a character like or similar to the uses and businesses set forth herein.

(Ord. No. 3.83, 1/25/83.)

It shall be unlawful for any person to engage in, conduct, or carry on, or permit to be engaged in, conducted or carried on, in or upon any premises within the city, the operation of an adult entertainment establishment without a license obtained from the police chief as required by this article. A license shall be issued to any person who has complied with the requirements of Sec. 26.54, 26.55, 26.57, 36.39.31 and all other applicable provisions of this Code unless:

a. The applicant makes a material misstatement in the application for a license; or

b. The applicant or any of its officers, directors, or employees has, within five (5) years immediately preceding the day of the filing of the application, been convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code Sec. 290, or any violation of Sec. 266i, 315, 316, 318, or Subdivision (b) of Sec. 647 of the California Penal Code, or any felony conviction involving the sale of a controlled substance specified in Sec. 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code.

(Ord. No. 3.83, 1/25/83.)

Each application for a license shall be accompanied by a nonrefundable fee in an amount established by council resolution. The application fee shall be used to defray, in part, administrative costs incurred in the processing of such application, and is not made in lieu of any other fees or taxes required under this code. A license shall be renewed annually at the beginning of each calendar year for a nonrefundable fee in an amount established by council resolution.

(Ord. No. 3.83, 1/25/83; Ord. No. 26.91, 12/10/91.)

Any application for an adult entertainment establishment license shall be made with the chief of police. Within thirty (30) working days following the receipt of a completed application, the chief of police shall either issue the license or mail a written statement of his reasons for denial thereof. The application shall set forth the exact nature of the activities proposed to be conducted, the proposed place of business and facilities therefor, and the name and address of each applicant. In addition to the foregoing, the applicant shall furnish the following information:

a. Written proof that the applicant is at least eighteen (18) years of age.

b. Applicant's height, weight, color of eyes and hair.

c. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the names and addresses of each of its officers, directors and each stockholder holding more than five percent (5%) of the stock of the corporation along with the amount of stock held. If the applicant is a partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. If one or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant shall apply.

d. The names and residence addresses of all persons currently employed or intended to be employed in the adult entertainment establishment, regardless of the nature of employment, along with the proposed or actual nature of the work performed or to be performed. Each applicant or licensee shall notify the city in writing of the names and addresses of any new employees within five (5) days of such employment.

(Ord. No. 3.83, 1/25/83.)

a. The grounds for denial of an application are those stated in Sec. 26.53.

b. Transmittal of decision. The license or decision to deny the application shall be given to the applicant in writing, setting forth specifically the ground or grounds upon which the decision is based, the pertinent code section or sections, and a brief statement of the factual matters in support thereof. The decision shall be mailed, postage prepaid, addressed to the applicant at his last known address, or it shall be delivered to the applicant personally.

(Ord. No. 3.83, 1/25/83.)

An applicant whose application for a license has been denied may reapply for such license after a period of not less than one (1) year has elapsed from the date such denial was deposited in the mail or received by the applicant, whichever occurs first. An earlier reapplication may be made if accompanied by evidence satisfactory to the chief of police that the ground or grounds for the denial of the application no longer exists.

(Ord. No. 3.83, 1/25/83.)

A licensee may have his license either revoked or suspended for any of the following causes arising from acts or omissions of the licensee, or of his employee or agent:

a. Fraud, misrepresentation or false statement in applying for a new or renewed license.

b. Conviction of any crime listed in Sec. 26.53 within the past five (5) years.

c. Failure to abide by any disciplinary action previously imposed.

(Ord. No. 3.83, 1/25/83.)

a. Grounds. The ground or grounds for disciplinary action against a licensee shall be those specified in Sec. 26.58 of this article.

b. Notice of hearing. A notice of a hearing shall be given to the licensee by the chief of police in writing, setting forth the time and place of the hearing, the ground or grounds upon which the hearing is based, the pertinent code section or sections and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the licensee at his last known address, or it shall be delivered to the licensee personally, at least ten (10) days prior to the hearing date.

c. License violation. If the chief of police, after the hearing, finds that there has been a license violation, he shall impose one of the following:

(1) A warning.

(2) Suspension of the license for a specified period not to exceed six (6) months.

(3) A revocation of the license.

Within ten (10) days of the hearing, the chief of police shall render his opinion in writing, stating his findings and the action taken, if any. This opinion shall be mailed, postage prepaid, to the licensee at his last known address, or delivered to the licensee personally.

d. Appeal to city manager. Within ten (10) days from the deposit of the decision in the mail or from its receipt by the applicant, whichever occurs first, the applicant may appeal in writing to the city manager, setting forth with particularity the ground or grounds for the appeal.

e. Hearing on appeal. The city manager shall set a time and place for the hearing on appeal not later than ten (10) days from the date the appeal was received by the city manager. The hearing shall be conducted in accordance with the provisions of this article.

f. Disposition of appeal. After the hearing on the appeal, the city manager may refer the matter back to the chief of police for a new investigation and decision, may affirm the decision of the chief of police, may dismiss the action, or may impose different action provided in Sec. 26.59c. The decision of the city manager shall be final.

(Ord. No. 3.83, 1/25/83.)

The following rules apply to any hearing required by this article. All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine witnesses. Any relevant evidence may be admitted if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs. Any hearing hereunder may be continued for a reasonable time for the convenience of a party or a witness.

(Ord. No. 3.83, 1/25/83.)

No refund or rebate of a license fee shall be allowed by reason of the fact that the licensee discontinues the activity prior to the expiration of the term or that the license has been suspended or revoked prior to the expiration of the term.

(Ord. No. 3.83, 1/25/83.)

In the event that a license is canceled, suspended, revoked or invalidated, the licensee shall forward it to the officer who has issued it not later than the end of the third business day after notification of such cancellation, suspension, revocation or invalidation.

(Ord. No. 3.83, 1/25/83.)

Any and all investigating officials of the city shall have the right to enter adult entertainment establishments from time to time during regular business hours to make reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing and health regulations or the provisions of this article. A warrant shall be obtained whenever required by law.

(Ord. No. 3.83, 1/25/83.)

No person licensed to operate an adult entertainment establishment shall operate under any name or conduct business under any designation not specified in the license.

(Ord. No. 3.83, 1/25/83.)

Before changing the location of an adult entertainment establishment, an application to the chief of police shall be made, and such application shall be granted provided all applicable provisions of this code are followed.

(Ord. No. 3.83, 1/25/83.)

No license issued pursuant to the provisions of this article shall be assigned or transferred in any manner, nor shall any person other than those therein mentioned engage in the enterprise for which the license is issued. As used herein, transfer shall include, but not be limited to, any modification of a business entity operating an enterprise, or otherwise required to be disclosed pursuant to Sec. 26.55, including transfer of more than ten percent (10%) of the stock of any corporation.

(Ord. No. 3.83, 1/25/83.)

The owner or operator of an adult entertainment establishment shall display the establishment license in an open and conspicuous place on the premises.

(Ord. No. 3.83, 1/25/83.)

Each operator of an establishment subject to the provisions of this article, and legally doing business on the effective date of this article, shall comply with all application and other requirements within sixty (60) days of the effective date of this article. Any such establishment, which after application is denied a license by the city solely by reason of its noncompliance with Section 36.39.21 shall comply with the provisions of those sections and obtain such license within five (5) years of the effective date of this article; provided, however, that any such establishment which intends to in any way transfer ownership or alter or change the nature of any such adult entertainment establishment on or after the effective date of this section shall obtain a license pursuant to this article prior to such transfer, alteration or change. Any such use, which at the expiration of said period is not in compliance with the provisions of this article and in possession of a validly issued license, shall at that time discontinue and abate the operation of said use. Any establishment legally existing on the effective date of this article and which is denied a license solely by reason of noncompliance with Sec. 36.39.21 for which a license would otherwise be issued, shall be issued a limited term license, which shall contain a statement on its face that said license is being continued pursuant to the provisions of this section, and stating the expiration date of the period of lawful operation, and that said limited term license shall not be renewed beyond said date. Any establishment operating pursuant to said limited term license shall be subject to all provisions of this code except the provisions of Sec. 36.39.21 as provided therein.

(Ord. No. 3.83, 1/25/83.)

a. Sec. 36.39.21 of this code shall apply to the subject matter of this article in all respects, including those not specifically mentioned in this article.

b. The provisions of this article shall not be construed to make lawful any activity that is otherwise prohibited by any other provisions of this code.

(Ord. No. 3.83, 1/25/83.)