Murrieta Municipal Code Ch. 5.16 Sexually-Oriented Business Permits

It is the purpose of this chapter to regulate sexually-oriented businesses as defined in Section 16.44.020 of the Development Code, being Title 16 of this Municipal Code to promote the health, safety, morals and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent deleterious location and concentration of sexually-oriented businesses within the city. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually-oriented materials. Similarly, it is not the intent nor effect of this chapter to restrict or deny access by adults to sexually-oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually-oriented entertainment to their intended market. Neither is it the intent or effect of this chapter to in any way condone or legitimize the distribution of obscene or harmful to minors material. References in this chapter to the city manager shall be deemed to include the city's city manager or his or her designee. Reference in this chapter to the chief of police shall be deemed to include the city's chief of police or his or her designee. (Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.010)

A. No sexually-oriented business shall be permitted to operate without a valid permit issued by the city for the particular type of business. It is unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually-oriented business without the permit.

B. The city manager is responsible for granting, denying, revoking, renewing, suspending, and canceling sexually-oriented business permits for proposed or existing sexually-oriented businesses. The city manager is also responsible for ascertaining whether a proposed sexually-oriented business for which a permit is being applied for complies with all locational requirements of the city zoning ordinance, all applicable zoning laws and/or regulations now in effect or as amended or enacted subsequent to the effective date of this chapter in the city and the city comprehensive plan.

The chief of police is responsible for providing information on whether an applicant has been convicted of a specified criminal act during the time period set forth.

The city manager is responsible for inspecting a proposed, permitted or nonpermitted sexually-oriented business in order to ascertain whether it is in compliance with applicable statutes and ordinances.

C. An application for a permit must be made on a form provided by the city. Any person desiring to operate a sexually-oriented business shall file with the city an original and two copies of a sworn permit application on the standard application form supplied by the city manager.

D. The completed application shall contain the following information and shall be accompanied by the following documents:

1. If the applicant is:

a. An individual, the individual shall state his/her legal name and any aliases and submit satisfactory proof that he/she is eighteen (18) years of age;

b. A partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any;

c. A corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing, the names and capacity of all officers, directors and principal stockholders, and the name of the registered corporate agent and the address of the registered office for service of process.

2. If the applicant intends to operate the sexually-oriented business under a name other than that of the applicant; he or she must state (1) the sexually-oriented business' fictitious name and (2) submit the required California registration documents.

3. Whether the applicant or any of the other individuals listed pursuant to this section, within the two- or five-year period as immediately preceding the date of the application, been convicted of a specified criminal act, and, if so, the specified criminal act involved, the date of conviction and the place of conviction.

4. Whether the applicant or any of the other individuals and or licensees of this chapter has had a previous permit under ordinance or other similar sexually-oriented business ordinances from another city or county denied, suspended or revoked, including the name and location of the sexually-oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant or any other individuals listed pursuant to this section has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is permitted under this chapter whose permit has previously been denied, suspended or revoked, including the name and location of the sexually-oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation.

5. Whether the applicant or any other individual listed pursuant to this section holds any other permits and/or licenses under this chapter or other similar sexually-oriented business ordinance from another city or county and, if so, the names and locations of such other permitted businesses.

6. The single classification of permit for which the applicant is filing.

7. The location of the proposed sexually-oriented business, including a legal description of the property, street address, and telephone number(s), if any.

8. The applicant's mailing addresses and residential address.

9. A recent photograph of the applicant.

10. The applicant's driver's permit number, Social Security number, and or his/her state or federally-issued tax identification number.

11. A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus-or-minus six inches.

12. A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a California registered land surveyor depicting the property lines and the structures containing any established existing uses regulated by this chapter within one thousand five hundred (1,500) feet of the property to be certified; the property lines of any established religious institution/synagogue, school, or public park or recreation area within one thousand five hundred (1,500) feet of the property to be certified; and the property lines of any residentially-zoned area or residential property within one thousand five hundred (1,500) feet of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is in existence at the time an application is submitted.

13. If a person who wishes to operate a sexually-oriented business is an individual, he/she must sign the application for a permit as applicant. If a person who wishes to operate a sexually-oriented business is other than an individual, each individual who has a ten percent or greater interest in the business must sign the application for a permit as applicant. If a corporation is listed as owner of a sexually-oriented business or as the entity which wishes to operate such a business, each individual having a ten percent or greater interest in the corporation must sign the application for a permit as applicant.

E. Applicants for a permit under this section shall have a continuing duty to promptly supplement application information required by this section in the event that the information changes in any way from what is stated on the application. The failure to comply with said continuing duty within thirty (30) days from the date of such change, by supplementing the application on file with the city manager, shall be grounds for suspension of a permit.

F. In the event that the city manager determines or learns at any time that the applicant has improperly completed the application for a proposed sexually-oriented business, he/she shall promptly notify the applicant of such fact and allow the applicant ten days to properly complete the application. (The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.)

G. The applicant must be qualified according to the provisions of this chapter and the premises must be inspected and found to be in compliance with health, fire and building codes and laws.

H. The applicant shall be required to pay a nonrefundable application fee of fifty dollars ($50.00) at the time of filing an application under this section of this chapter.

I. Prior to obtaining any permit or license occupational license to operate any business defined in this chapter, and as part of any application for a permit under this section, the applicant shall obtain from the city manager a certification that the proposed location of such business complies with the locational requirements of the Murrieta zoning ordinance.

J. The fact that a person possesses other types of state or city permits and/or licenses does not exempt him/her from the requirement of obtaining a sexually-oriented business permit.

K. By applying for a permit under this chapter, the applicant shall be deemed to have consented to the provisions of this chapter and to the exercise by the city manager, the chief of police's office and all other city agencies charged with enforcing the laws, ordinances and codes applicable in the city of their respective responsibilities under this chapter.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.020)

A. Upon receipt of an application properly filed with the city and upon payment of the nonrefund-able application fee, the city manager shall immediately stamp the application as received and shall immediately thereafter send photocopies of the application to the chief of police's office and any other city agencies responsible for enforcement of health, fire and building codes and laws. Each department or agency shall promptly conduct an investigation of the applicant, application and the proposed sexually-oriented business in accordance with its responsibilities under law and as set forth in this chapter. The investigation shall be completed within twenty (20) days of receipt of the application by the city manager. At the conclusion of its investigation, each department or agency shall indicate on the photocopy of the application its approval or disapproval of the application, date it, sign it, and, in the event it disapproves, state the reasons therefor.

B. A department or agency shall disapprove an application if it finds that the proposed sexually-oriented business will be in violation of any provision of any statute, code, ordinance, regulation or other law in effect in the city. After its indication of approval or disapproval, each department or agency shall immediately return the photocopy of the application to the city manager.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.030)

A. The city manager shall grant or deny an application for a permit within thirty (30) days from the date of its proper filing. Upon the expiration of the thirtieth day, the applicant may be permitted to begin operating the business for which the permit is sought, unless and until the city manager notifies the applicant of a denial of the application and states the reason(s) for that denial.

B. Grant of Application for Permit.

1. The city manager shall grant the application unless one or more of the criteria set forth in subsection C of this section is present.

2. The permit, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually-oriented business. The permit shall also indicate that the sexually-oriented business whether permitted or not may be subject to prohibitions against public nudity in indecency pursuant to the United States Supreme Court decision in Barnes v. Glen Theatre, Inc., 501 4.5.560, III S.Ct. 2456, 59 USLW 4745 1991 and any applicable California statutes. The permit shall be posted in a conspicuous place at or near the entrance to the sexually-oriented business so that it can be easily read at any time.

C. Denial of Application for Permit.

1. The city manager shall deny the application for any of the following reasons:

a. An applicant is under eighteen (18) years of age.

b. An applicant or an applicant's spouse is overdue on his/her payment to the city of taxes, fees, fines, or penalties assessed against him/her or imposed upon him/her in relation to a sexually-oriented business.

c. An applicant is residing with a person who has been denied a permit by the city to operate a sexually-oriented business within the preceding twelve (12) months, or residing with a person whose permit to operate a sexually-oriented business has been revoked within the preceding twelve (12) months.

d. An applicant has failed to provide information reasonably necessary for the issuance of the permit or has falsely answered a question or request for information on the application form.

e. The premises to be used for the sexually-oriented business have not been approved as being in compliance with health, fire and building codes by the department or agency responsible under law for investigating the compliance.

f. The application or permit fees required by this chapter have not been paid.

g. An applicant of the proposed business is in violation of, or is not in compliance with, any of the provisions of this chapter including but not limited to the zoning location requirements for a sexually-oriented business.

h. The granting of the application would violate a statute, ordinance, or court order.

i. The applicant has a permit under this chapter which has been suspended or revoked.

j. An applicant has been convicted of a “specified criminal” act for which:

i. Less than two years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a misdemeanor offense for the “specified criminal” acts which are crimes against children, sexual abuse, rape or crimes connected with another sexually-oriented business including but not limited to distribution of obscenity, harmful to minors violations, prostitution, pandering, or tax violations;

ii. Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a felony offense; for the “specified criminal” acts which are crimes against children, sexual abuse, rape or crimes connected with another sexually-oriented business including but not limited to distribution of obscenity, harmful to minors violations, prostitution, pandering, or tax violations;

iii. Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the convictions are of two or more misdemeanors for the “specified criminal” acts which are crimes against children, sexual abuse, rape or crimes connected with another sexually-oriented business including but not limited to distribution of obscenity, harmful to minors violations, prostitution, pandering or tax violations; offenses occurring within any twenty-four-month period;

iv. The fact that a conviction is being appealed shall have no effect on disqualification of the applicant;

v. An applicant who has been convicted of the above described “specified criminal acts” may qualify for a sexually-oriented business permit only when the time period required above has elapsed.

2. If the city manager denies the application, he/she shall notify the applicant of the denial and state the reason(s) for the denial.

3. If the person applies for a permit for a particular location within a period of twelve (12) months from the date of denial of a previous application for a permit at the location, and there has not been an intervening change in the circumstances which could reasonably be expected to lead to a different decision regarding the former reasons for denial, the application shall be denied.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.040)

The annual fee for a sexually-oriented business permit shall be set by resolution of the city council.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.050)

A. An applicant or permittee shall permit representatives of the city manager, city chief of police's office, the city health department, and the fire department to inspect the premises of a sexually-oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business.

B. It is unlawful and a person who operates a sexually-oriented business, regardless of whether or not a permit has been issued for the business under this chapter, or his or her agent or employee commits a misdemeanor if he or she refuses to permit such lawful inspection of the premises at any time that it is occupied or open for business. (Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.060)

A. Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in Section 5.16.020 (for renewals, filing of original survey shall be sufficient) of this chapter. Application for renewal shall be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the expiration of the permit will not be affected.

B. When the city manager denies renewal of the permit, the applicant shall not be issued a permit under this chapter for one year from the date of denial. If, subsequent to denial, the city manager finds that the basis for denial of the renewal of the permit has been corrected, the applicant shall be granted a permit if at least ninety (90) days have elapsed since the date denial became final.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.070)

The city manager shall suspend a permit for a period not to exceed thirty (30) days if he/she determines that a permittee, or an employee of a permittee, has:

A. Violated or is not in compliance with any section of this chapter; or

B. Engaged in excessive use of alcoholic beverages while on the sexually-oriented business premises; or

C. Refused to allow an inspection of sexually-oriented business premises as authorized by this chapter; or

D. Knowingly permitted gambling by any person on the sexually-oriented business premises; or

E. Operated the sexually-oriented business in violation of a building, fire, health, or zoning statute, code, ordinance or regulation, whether federal, state or local, the determination being based on investigation by the division, department or agency charged with enforcing the rules or laws. In the event of such statute, code, ordinance or regulation violation, the city or its designee, shall promptly notify the permittee of the violation and shall allow the permittee a seven-day period in which to correct the violation. If the permittee fails to correct the violation before the expiration of the seven-day period, the city or its designee, shall forthwith suspend the permit and shall notify the permittee of the suspension. The suspension shall remain in effect until the violation of the statute, code, ordinance or regulation in question has been corrected; or

F. Engaged in permit transfer contrary to this chapter. In the event that the city or its designee, suspends a permit on the ground that a permittee engaged in a permit transfer contrary to this chapter, the city or its designee shall forthwith notify the permittee of the suspension. The suspension shall remain in effect until the applicable section of this chapter has been satisfied.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.080)

A. The city manager shall revoke a permit if a cause of suspension and the permit has been suspended within the preceding twelve (12) months.

B. The city manager shall revoke a permit upon determining that:

1. A permittee gave false or misleading information in the material submitted during the application process; or

2. A permittee or an employee has knowingly allowed possession, use or sale of controlled substances on the premises; or

3. A permittee or an employee has knowingly allowed prostitution on the premises; or

4. A permittee or an employee knowingly operated the sexually-oriented business during a period of time when the permittee's permit was suspended; or

5. A permittee has been convicted of a “specified criminal act” for which the time period required of this chapter has not elapsed; or

6. On two or more occasions within a twelvemonth period, a person or persons committed an offense, occurring in or on the permitted premises, constituting a specified criminal act for which a conviction has been obtained, and the person or persons were employees of the sexually-oriented business at the time the offenses were committed. The fact that a conviction is being appealed shall have no effect on the revocation of the permit; or

7. A permittee is delinquent in payment to the city or state for any taxes or fees past due; or

8. A permittee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or any other specified sexual activities to occur in or on the permitted premises.

9. The permittee shall have the right to appeal any intended denial, suspension or revocation of the permit pursuant to Sections 2.28.010 through 2.28.040 of this code. All administrative actions shall be stayed pending the completion of the hearing process.

C. When the city manager revokes a permit, the revocation shall continue for one year and the permittee shall not be issued a sexually-oriented business permit for one year from the date revocation became effective. If, subsequent to revocation, the city or its designee finds that the basis for revocation has been corrected, the applicant shall be granted a permit if at least ninety (90) days have elapsed since the date revocation became effective.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.090)

A. A permittee shall not operate sexually-oriented business under the authority of a permit at any place other than the address designated in the application for permit.

B. A permittee shall not transfer his/her permit to another person unless and until such other person satisfies the following requirements:

Obtains an amendment to the permit from the city or its designee, which provides that he/she is now the permittee, which amendment may be obtained only if he or she has completed and properly filed an application with the city manager, setting forth the information called for under Section 5.16.020 of this chapter in the application; and

2. Pays a transfer fee of twenty (20) percent of the annual permit fee set by this chapter.

C. No permit may be transferred when the city manager has notified the permittee that suspension or revocation proceedings have been or will be brought against the permittee.

D. A permittee shall not transfer his or her permit to another location.

E. Any attempt to transfer a permit either directly or indirectly in violation of this section is declared void and the permit shall be considered abandoned.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.100)

A person who operates or causes to be operated a sexually-oriented business, other than a sexually-oriented motel/hotel and regardless of whether or not a permit has been issued to the business under this chapter, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:

A. Upon application for a sexually-oriented business permit, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations, the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which this permit will be conspicuously posted, if granted. A professionally-prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale with marked dimensions sufficient to show the various internal dimension of all areas of the interior of the premises to an accuracy of plus-or-minus six inches. The city manager may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.

B. The application shall be sworn to be true and correct by the applicant.

C. No alteration in the configuration or location of a manager's station may be made without the prior approval of the city manager.

D. It is the duty of the owners and operator of the premises to insure that at least one employee is on duty and situated at each manager's station at all times that any patron is present inside the premises.

E. The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designed, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.

F. It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present on the premises to insure that the view area specified in subsection F of this section remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to insure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Section 5.16.130 of this chapter.

G. No viewing room may be occupied by more than one person at any one time.

H. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access and an illumination of not less than two foot candle as measured at the floor level.

I. The owners and operator insure that the illumination described above is maintained at all times that any patron is present on the premises.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.110)

No person shall operate or cause to be operated a sexually-oriented business, regardless of whether or not a permit has been issued for the business under this chapter, and knowingly or with reasonable cause to know, permit, suffer, or allow:

A. Admittance of a person under eighteen (18) years of age to the business premises;

B. A person under eighteen (18) years of age to remain at the business premises;

C. A person under eighteen (18) years of age to purchase goods or services at the business premises; or

D. A person who is under eighteen (18) years of age to work at the business premises as an employee.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.120)

A. It is unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually-oriented business, regardless of whether or not a permit has been issued for the business under this chapter, and advertises the presentation of any activity prohibited by any applicable state statute or local ordinance.

B. It is unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually-oriented business, regardless of whether or not a permit has been issued for the business under this chapter, and displays or otherwise exhibits the materials and/or performances at such sexually-oriented business in any advertising. This prohibition shall not extend to advertising of the existence or location of such sexually-oriented business.

C. Nothing contained in this chapter shall relieve the operator(s) of a sexually-oriented business from complying with the requirements of the city zoning ordinance, as it may be amended from time to time, or any subsequently enacted city ordinances or regulations.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.130)

A. No person shall operate or cause to be operated a sexually-oriented business, regardless of whether or not a permit has been issued for the business under this chapter, and allow such business to remain open for business, or to permit any employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service or solicit a service, between the hours of one a.m. and nine a.m. of any particular day.

B. No person shall work as an employee of a sexually-oriented business, regardless of whether or not a permit has been issued for the business under this chapter, if the employee engages in a performance, solicits a performance, makes a sale, solicits a sale, provides a service, or solicits a service between the hours of one a.m. and nine a.m. of any particular day.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.140)

A. In addition to the criminal provisions found at other sections of this chapter, the following additional criminal provisions shall also apply to sexually-oriented businesses.

B. No person shall operate or cause to be operated a sexually-oriented business, if:

1. The business does not have a sexually-oriented business permit under this chapter for any applicable classification;

• 2. The business has a permit which is under suspension;
• 3. The business has a permit which has been revoked; or
• 4. The business has a permit which has expired.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.150)

A. It is a defense to prosecution for any violation of this chapter that a person appearing in a state of nudity did so in a modeling class operated:

1. By a college, junior college, or university supported entirely or partly by taxation;

2. By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or

3. In a structure:

a. Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing, and

b. Where, in order to participate in a class a student must enroll at least three days in advance of the class, and

c. Where no more than one nude model is on the premises at any one time.

B. It is a defense to prosecution for a violation of this chapter that an employee of a sexually-oriented business, regardless of whether or not it is permitted under this chapter, exposed any specified anatomical area during the employee's bona fide use of a restroom, or during the employee's bona fide use of a dressing room which is accessible only to employees.

(Ord. 29 § 1 (part), 1991: Ord. 3 § 1 (part), 1991: prior code § 5.10.160)