Temple City Municipal Code Art. D Tobacco Retailer Permit

This article may be referred to as the TOBACCO RETAILER PERMIT ORDINANCE of the city of Temple City. (Ord. 12-965)

In enacting this article, it is the intent of the city council to encourage responsible tobacco retailing and to discourage violations of tobacco related laws, especially those that discourage the sale or distribution of tobacco and nicotine products to minors. There is no intent, however, to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein. (Ord. 12-965)

The following words and phrases, whenever used in this article, shall have the meanings defined in this section unless the context clearly requires otherwise:

ARM'S LENGTH TRANSACTION: A sale in good faith and for valuable consideration that reflects the fair market value in the open market between two (2) informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this article is not an arm's length transaction.

DEPARTMENT: The community development department, and any other agency or person tasked by the city manager of the city with enforcement of this article.

DIRECTOR: The community development director of the city and any other person tasked by the city manager of the city with enforcement of this article.

PERMITTEE: Any tobacco retailer or proprietor thereof holding a permit issued by the city pursuant to the provisions of this article.

PERSON: Any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

PROPRIETOR: A person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day to day operations of a business.

SELF-SERVICE DISPLAY: The open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person to person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.

SMOKING: Possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind).

TOBACCO PARAPHERNALIA: Cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

TOBACCO PRODUCT: Any substance containing tobacco leaf, including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States food and drug administration for use in treating nicotine or tobacco dependence.

TOBACCO RETAILER: Any person who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia.

TOBACCO RETAILER PERMIT: A permit issued by the city authorizing a proprietor to engage in tobacco retailing.

TOBACCO RETAILING: The doing of any of the activities mentioned in the definition of "tobacco retailer". This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. (Ord. 12-965)

A. It shall be unlawful and a misdemeanor for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid tobacco retailer's permit pursuant to this article for each location at which that activity is to occur.

1. Except where noted otherwise in this article, notwithstanding any other provisions of this code, the issuance, suspension, and revocation of a tobacco retailer permit, and all related procedures, shall be governed solely by this article. (Ord. 12-965)

A. No tobacco retailer permit may issue to authorize tobacco retailing at other than a fixed location. Peripatetic tobacco retailing, tobacco retailing by persons on foot or from vehicles is explicitly prohibited.

B. No tobacco retailer permit may be issued to authorize tobacco retailing at any location that violates any provision of the Temple City zoning code. (Ord. 12-965)

A. Any person seeking a tobacco retailer permit shall submit a completed application, on a city approved form, to the department. Application for a tobacco retailer permit shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. Said application shall contain the following information:

1. The name, address, and telephone number of each proprietor of the business seeking a permit.

2. The business name, address, and telephone number of the single, fixed location for which a permit is sought.

3. A single name and mailing address authorized by each proprietor to receive all communications and notices (hereinafter, "authorized agent") required by, authorized by, or convenient to the enforcement of this article. If an authorized agent is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection A2 of this section.

4. Proof that the location for which a tobacco retailer permit is sought has been issued a valid state tobacco retailer's license by the California board of equalization.

5. Whether any proprietor or any agent of the proprietor has been issued a permit pursuant to this article that is or was at any time suspended or revoked, and, if so, the dates of the suspension period or the date of revocation.

6. Whether any proprietor or any agent of the proprietor has admitted violating or has been determined to have violated any provision of this article or any state or federal tobacco related law, and, if so, the dates of all such violations within the preceding five (5) years.

7. Such other information as the department deems necessary for the administration or enforcement of this article as specified on the application form required by this section.

B. No application for a tobacco retailer permit shall be accepted by the city unless accompanied by payment of an annual fee in an amount established by resolution of the city council.

C. A permittee shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer permit within ten (10) business days of a change.

D. All information specified in an application pursuant to this section shall be subject to disclosure under the California public records act 1

or any other applicable law, subject to the laws' exemptions. (Ord. 12-965)

A. Upon the receipt of both a completed application for a tobacco retailer permit and the corresponding permit fee, the department shall issue a permit unless substantial evidence demonstrates that one or more of the following bases for denial exists:

1. The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this article.

2. The application seeks authorization for tobacco retailing at a location for which this article prohibits issuance of tobacco retailer permit. However, this subsection A2 shall not constitute a basis for denial of a permit if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm's length transaction.

3. The application seeks authorization for tobacco retailing for a proprietor to whom this article prohibits a permit to be issued.

4. The applicant or proprietor of the proposed tobacco retailer has had a tobacco retailer permit revoked within the preceding twelve (12) months.

5. The application seeks authorization for tobacco retailing that is prohibited pursuant to this article, that is unlawful pursuant to this code (including, without limitation, the zoning code and business license regulations), or that is unlawful pursuant to any other law.

B. Any applicant aggrieved by a decision denying a tobacco retailer permit may appeal the decision in the same manner as the appeal of a suspension or revocation pursuant to the provisions of subsection 5-2D-12D and section 5-2D-13 of this article. (Ord. 12-965)

A. Term: A permit issued pursuant to this article shall be valid for one year, unless the permit is revoked earlier in accordance with the provisions of this article.

B. Renewal Of Permit: Each tobacco retailer who seeks to renew a tobacco retailer permit shall submit a renewal application on a city approved form and tender the annual permit fee to the department no later than thirty (30) calendar days prior to the expiration of the permit. Any tobacco retailer permit that is not timely renewed shall expire and become null and void at the end of its term. (Ord. 12-965)

A. A permit holder shall not operate under a name, or conduct business under a designation, not specified on the permit.

B. A tobacco retailer permit may not be transferred from one person to another or from one location to another. A change in proprietor, business name, or location, or a change in any other information from that which is shown on the permit application shall render the permit null and void, and shall require the permit holder to obtain a new tobacco retailer permit in accordance with the provisions of this article.

C. Notwithstanding any other provision of this article, prior violations at a location shall continue to be counted against a location and permit ineligibility periods shall continue to apply to a location unless:

1. The location has been fully transferred to a new proprietor or fully transferred to entirely new proprietors; and

2. The new proprietor(s) provide(s) the city with clear and convincing evidence that the new proprietor(s) has/have acquired or is acquiring the location in an arm's length transaction. (Ord. 12-965)

Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco retailer permit any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit. Nothing in this article shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including, but not limited to, any provision of this code, including, without limitation, title 3, chapter 2, article C, "Secondhand Smoke Control", and title 9, "Zoning Regulations", of this code and any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code section 6404.5. For example, obtaining a tobacco retailer registration does not make the retailer a "retail or wholesale tobacco shop" for the purposes of California Labor Code section 6404.5. (Ord. 12-965)

The following applicable operating requirements of this section shall be deemed conditions of any tobacco retailer permit issued pursuant to the provisions of this article, and failure to comply with every such requirement shall be grounds for suspension, revocation, and/or the imposition of administrative fines in accordance with section 5-2D-12 of this article.

A. Knowledge Of Applicable Laws: It is the responsibility of each permittee and proprietor to be informed of the laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer permit. No person may rely on the issuance of a permit as a determination by the city that the proprietor has complied with all laws applicable to tobacco retailing. A permit issued contrary to this article, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor shall be revoked pursuant to section 5-2D-12 of this article. Nothing in this article shall be construed to vest in any person obtaining and maintaining a tobacco retailer permit any status or right to act as a tobacco retailer in contravention of any provision of law.

B. Lawful Business Operation: In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a tobacco retailer permit has been issued, it shall be a violation of this article for a permittee, or any of the permittee's agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

C. Display Of Permit: Each tobacco retailer permit shall be prominently displayed in a publicly visible location at the permitted location.

D. Retail Sales To Persons Under Eighteen Prohibited: No person engaged in tobacco retailing shall sell or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco product or tobacco paraphernalia to any person who is under the legal age of eighteen (18) years.

E. Positive Identification Required: No person engaged in tobacco retailing shall sell or offer to sell, give or offer to give, or transfer or offer to transfer any tobacco product or tobacco paraphernalia to another person who appears to be under the age of thirty (30) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess the tobacco product or tobacco paraphernalia. The permittee or the permittee's agent or employee shall refuse the sale or transfer of any tobacco product or tobacco paraphernalia to any person who appears to be under the age of thirty (30) years, who fails to present valid, legal photo identification prior to the sale or transfer.

F. Minimum Age For Persons Selling Tobacco: No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing.

G. Self-Service Displays Prohibited: Tobacco retailing by means of a self-service display is prohibited.

H. Compliance With State Mandated Sign Requirements: Tobacco retailers shall post and maintain all signage required by the California Labor Code, California Business And Professions Code, California Penal Code, and any other applicable federal, state, or local law.

I. False And Misleading Advertising Prohibited: A tobacco retailer or proprietor without a current and valid tobacco retailer registration, including, but not limited to, a tobacco retailer whose permit is suspended or has been revoked:

1. Shall keep all tobacco products and tobacco paraphernalia out of public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision shall constitute tobacco retailing without a permit under section 5-2D-3 of this article; and

2. Shall not display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer's location or that could lead a reasonable consumer to believe that such products can be obtained at that location. (Ord. 12-965)

A. Compliance with this article shall be monitored by the Los Angeles County sheriff's department, the public safety division and code enforcement personnel, the community development department, and permit investigators (hereinafter, collectively, "enforcement officers"). The city manager may designate any number of additional persons to monitor compliance with this article.

B. Enforcement officers should check the compliance of each tobacco retailer at least three (3) times per twelve (12) month period. Enforcement officers may check the compliance of tobacco retailers previously found to be in compliance with this article a fewer number of times so that enforcement officers may check the compliance of new permittees and tobacco retailers previously found in violation of this article more frequently. Nothing in this subsection shall create a right of action in any permittee or other person against the city or its agents.

C. Compliance checks shall be conducted so as to allow enforcement officers to determine, at a minimum, if a tobacco retailer is complying with laws regulating youth access to tobacco. Enforcement officers may also conduct compliance checks to determine compliance with other laws applicable to tobacco retailing.

D. Enforcement officers shall have the right to enter, free of charge or restriction, at any time, any place of business for which a permit is required by this article, and to demand the exhibition of such permit for the current term by any person engaged or employed in the transaction of such business.

E. The Los Angeles County sheriff's department and/or the city manager (or designee thereof) may promulgate and adopt policies, procedures, and/or guidelines for the participation of persons under the age of eighteen (18) in compliance checks pursuant to this article (hereinafter, "youth decoy").

F. The city shall not enforce any law establishing a minimum age for tobacco purchases or possession against a youth decoy if the potential violation occurs when:

1. The youth decoy is participating in a compliance check supervised by a peace officer or enforcement officer;

2. The youth decoy is acting as an agent of an enforcement officer;

3. The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the city or the California department of health services. (Ord. 12-965)

A. Suspension Or Revocation; Administrative Fine: In addition to any other penalty authorized by law, a tobacco retailer permit shall be suspended or revoked and an administrative fine shall be assessed against the tobacco retailer in accordance with the procedures set forth in this section if it is determined that the permittee or his or her agent or employee has violated any of the conditions of the permit imposed pursuant to this article or any other local, state or federal law pertaining to the sale of tobacco products or tobacco paraphernalia to persons under eighteen (18) years of age.

1. First Violation: Upon a determination by the department of a first permit violation within a sixty (60) month period, the permit shall be suspended for a period of thirty (30) calendar days and an administrative fine in the amount of five hundred dollars ($500.00) (or as otherwise set by resolution of the city council) shall be assessed against the tobacco retailer. The administrative fine shall be due and payable in full at the time that the suspension becomes effective.

2. Second Violation: Upon a determination by the department of a second permit violation within a sixty (60) month period, the permit shall be suspended for a period of ninety (90) calendar days and an administrative fine in the amount of one thousand dollars ($1,000.00) (or as otherwise set by resolution of the city council) shall be assessed against the tobacco retailer. The administrative fine shall be due and payable in full at the time that the suspension becomes effective.

3. Third Violation: Upon a determination by the department of a third permit violation within a sixty (60) month period, the permit shall be revoked and an administrative fine in the amount of two thousand five hundred dollars ($2,500.00) (or as otherwise set by resolution of the city council) shall be assessed against the tobacco retailer. The administrative fine shall be due and payable in full at the time that the revocation becomes effective.

B. Revocation Of Permit Wrongly Issued: A tobacco retailer permit shall be revoked if the department determines that one or more of the bases for denial of a permit under subsection 5-2D-6A of this article existed at the time the application was made or at any time before the permit was issued. No administrative fine shall accompany a revocation of a permit that had been wrongly issued.

C. Order Of Suspension/Revocation: Upon a determination by the department that the permittee or his or her agent or employee has violated any of the conditions of the permit imposed pursuant to this article, or any other local, state or federal law pertaining to the sale of tobacco products or tobacco paraphernalia to persons under the age of eighteen (18) years, the department shall serve a written order of suspension/revocation of tobacco retailer permit (hereinafter, "order of suspension/revocation") upon either: 1) the authorized agent either via personal service or via first class mail, postage prepaid to the address provided on the tobacco retailer permit application, or 2) if an authorized agent was not listed on the tobacco retailer permit application, to the permittee via personal service or via first class mail, postage prepaid to the business address.

1. The order of suspension/revocation shall provide, at a minimum, the following information:

a. The name of the permittee and tobacco retailer permit number;

b. A brief statement of the specific ground(s) for the suspension or revocation;

c. If applicable, the term of the suspension;

d. If applicable, the amount of any administrative fine being assessed;

e. If applicable, the dates and terms of any prior suspensions and administrative fines within the preceding sixty (60) months;

f. The effective date of the suspension or revocation and the due date of the administrative fine;

g. If applicable, the date on which a permittee may apply for a new tobacco retailer permit after revocation;

h. The time frame and manner in which the permittee may contest the order of suspension/revocation as set forth in subsection D1 of this section;

i. A statement that the failure of the permittee to contest the order of suspension/revocation will constitute a waiver of the permittee's right to administratively challenge the order of suspension/revocation, and the order of suspension/revocation shall be deemed a final and binding administrative decision; and

j. If applicable and in the possession of the department, copies of the following documents:

(1) Permittee's application for tobacco retailer permit;

(2) Permittee's tobacco retailer permit;

(3) Permittee's tobacco retailer's license (as issued by the state board of equalization); and

(4) Any law enforcement report, memorandum, and/or photograph submitted by the sheriff's department or other law enforcement agency relied upon by the department in support of the suspension or revocation. These documents shall be redacted as required or permitted by law.

2. Service of the order of suspension/revocation shall be deemed to have been completed on the date on which the order of suspension/revocation is either personally delivered to the authorized agent or permittee or the date on which the order of suspension/revocation is deposited with the United States postal service.

3. Failure of an authorized agent or permittee to receive a properly addressed order of suspension/revocation shall not invalidate any of the proceedings pursuant to this article.

D. Contest Of Order Of Suspension/Revocation:

1. Any permittee whose permit has been suspended or revoked pursuant to the provisions of this article may contest the order of suspension/revocation by filing with the department a written request to contest the order of suspension/revocation (including the imposition of the corresponding administrative fine) within ten (10) calendar days of the order of suspension/revocation. The written request must include, at a minimum, the following:

a. The name of the permittee, the address of the business property, and the tobacco retailer permit number that is subject to the order of suspension/revocation;

b. The date on which the order of suspension/revocation was issued;

c. A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the permittee;

d. A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the order of suspension/revocation should be reversed or otherwise set aside;

e. The signature of all proprietors who are contesting the order of suspension/revocation under penalty of perjury as to the contents of the request for appeal.

2. Notwithstanding title 1, chapter 4, "Administrative Citations", of this code or any other provision of this code, an administrative fine assessed against a tobacco retailer in conjunction with an order of suspension/revocation, the assessment of the administrative fine, shall only be challenged as set forth in this section.

3. Upon receipt of such written request for a hearing, the department shall give not less than five (5) business days' written notice to the permittee to show cause at a time and place fixed in the notice why the tobacco retailer permit should not be suspended or revoked (as the case may be). The written notice of hearing shall be served upon the permittee in the same manner as the order of suspension/revocation.

4. Any order of suspension/revocation and any assessment of a corresponding administrative fine shall be stayed pending a director's determination upon the timely filing of a request for a hearing.

E. Administrative Review Hearing:

1. The director shall conduct the administrative review hearing at the designated time and place. The hearing is to be conducted informally, and formal rules of evidence do not apply. If a youth decoy participated in the underlying investigation, the youth decoy shall not be required to appear or to give testimony. At the hearing, the permittee shall have the burden of showing cause why the tobacco retailer permit should not be suspended or revoked, and the permittee shall be given an opportunity to present any evidence (testimonial, documentary, or otherwise) as it pertains to whether a ground for suspension or revocation exists. In determining whether a ground for suspension or revocation exists, the director shall not consider any evidence pertaining to "preventative measures" or "subsequent remedial measures" (e.g., employee training, the termination of employment of the agent/employee that committed the underlying violation, etc.).

2. Within thirty (30) calendar days of the conclusion of the administrative review hearing, the director shall serve the permittee with written notice of its determination as to whether the tobacco retailer permit shall be suspended or revoked (and the corresponding administrative fine shall be assessed). The written determination shall be served upon the permittee in the same manner as the order of suspension/revocation. If the director determines that the tobacco retailer permit shall be suspended or revoked, the written determination shall contain all of the information required pursuant to subsection C1 of this section. A written determination that the tobacco retailer permit shall be suspended or revoked shall also contain the time frame and manner in which the permittee may contest the director's determination as set forth in section 5-2D-13 of this article, and, a statement that the failure of the permittee to contest the director's determination will constitute a waiver of the permittee's right to administratively challenge the director's determination, and the director's determination to suspend or revoke the tobacco retailer permit shall be deemed a final and binding administrative decision. (Ord. 12-965)

A. Request For Appeal: Any permittee who has been aggrieved by a director's determination to affirm an order of suspension/revocation and to suspend or revoke a tobacco retailer permit (and impose the corresponding administrative fine) may appeal the director's determination by submitting a written request for appeal to the city clerk within ten (10) calendar days of the director's written determination. The written request for appeal shall contain, at a minimum, the following:

1. The name of the permittee, the address of the business property, and the tobacco retailer permit number that is subject to the director's determination to suspend or revoke;

2. The date on which the director's determination was issued;

3. A statement as to all grounds for appeal in ordinary and concise language, together with any material facts claimed to support the contentions of the permittee (as only the matters and issues raised in the written request will be considered on appeal);

4. A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the director's determination should be reversed or otherwise set aside;

5. The signature of all proprietors who are contesting the director's determination under penalty of perjury as to the contents of the request for appeal.

B. Staying Of Suspension/Revocation: A director's determination to suspend or revoke a tobacco retailer permit (and to pay the corresponding administrative fine) shall be stayed pending a determination of the city manager (or designee thereof) upon the timely filing of a written request for appeal.

C. Notice Of Appeal Hearing: Upon receipt of such written request for appeal, the city clerk shall give not less than five (5) business days' written notice to the permittee of the date and time of the appeal hearing. Service of the notice of appeal hearing shall be in the same manner as the order of suspension/revocation.

D. Appeal Hearing: At the time and place set for the appeal hearing, the city manager (or designee thereof) shall proceed to hear testimony and to receive evidence from the city, the permittee, and other competent persons respecting those matters or issues on appeal. Only those matters or issues specifically raised by the permittee in the written request for appeal shall be considered in the hearing of the appeal. The formal rules of evidence do not apply to this proceeding. If a youth decoy participated in the underlying investigation, the youth decoy shall not be required to appear or to give testimony. At the hearing, the permittee shall be given an opportunity to present any evidence (testimonial, documentary, or otherwise) as it pertains to whether a ground for suspension or revocation exists. In determining whether a ground for suspension or revocation exists, the director shall not consider any evidence pertaining to "preventative measures" or "subsequent remedial measures" (e.g., employee training, the termination of employment of the agent/employee that committed the underlying violation, etc.).

E. Decision On Appeal: If it is shown at the appeal hearing by a preponderance of the evidence that one or more bases exist to suspend or revoke the tobacco retailer permit, the city manager (or designee thereof) shall affirm the director's determination to suspend or revoke the permit and to impose the corresponding administrative fine. The city manager shall cause to be served upon the permittee a written notice of decision, which shall contain the city manager's determination as to whether the tobacco retailer permit shall be suspended or revoked and the corresponding administrative fine assessed, as well as findings of fact that support the determination. The written notice of decision shall further inform the appellant that the decision is a final decision and that the time for judicial review for the suspension or revocation is governed by California Code Of Civil Procedure section 1094.6 et seq., and that the time for judicial review for the imposition of the administrative fine is governed by Government Code section 53069.4(b). The notice of decision shall be served upon the appellant in the same manner as the order of suspension/revocation. A decision to affirm the director's determination to suspend or revoke a tobacco retailer permit shall become effective, and the permit shall be suspended or revoked, immediately upon service of the written notice of decision. The corresponding administrative fine shall be immediately due upon service of the written notice of decision. (Ord. 12-965)

A. Notwithstanding any other provision of this article, no tobacco retailer's permit shall be issued to a tobacco retailer (or proprietor thereof) whose permit has previously been revoked pursuant to subsection 5-2D-12A of this article for a period of twelve (12) months from the date of the prior revocation.

B. Notwithstanding any other provision of this article, no tobacco retailer's permit shall be issued for any location where a tobacco retailer permit has previously been revoked pursuant to subsection 5-2D-12A of this article for a period of twelve (12) months from the date of the prior revocation, unless ownership of the business at the location has been transferred in an arm's length transaction.

C. The revocation of a tobacco retailer's permit pursuant to subsection 5-2D-12B of this article shall be without prejudice to the filing of a new tobacco retailer permit application. Any such new application shall be reviewed in accordance with section 5-2D-6 of this article. (Ord. 12-965)

A. In addition to any other remedy, any person who causes, permits, aids, abets, suffers, or conceals a violation of any provision of this article, or who fails to comply with any obligation or requirement of this article, is guilty of a misdemeanor punishable in accordance with title 1, chapter 2 of this code.

B. Each violation of this article is hereby declared to be a public nuisance.

C. The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity.

D. In addition to other remedies provided by this article or by other law, any violation of this article may be remedied by administrative or civil action, including, but not limited to, civil injunction or other abatement action. (Ord. 12-965)

If any section, subsection, paragraph, sentence, clause or phrase of this article is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this article. The city council declares that it would have adopted this article, and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, phrases, or portions be declared invalid or unconstitutional. (Ord. 12-965)

ARTICLE E. MASSAGE ESTABLISHMENTS AND THERAPISTS

SECTION:

The purpose of this article is to protect the public's health and safety through the establishment of certain licensing standards pertaining to massage establishments within the city of Temple City, and to recognize massage therapy as a legitimate business occupation and health service enhancement. Nothing in this article is intended to permit any use, conduct and/or activity that violates any federal, state, or local law or regulations. (Ord. 16-1010)

Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this article.

APPROVED SCHOOL: An institution that provides massage therapy education and training as such term is defined in section 4600 of the massage therapy act.

BUSINESS PERMIT OFFICER: The community development director of the city of Temple City, or his or her designated representative.

CAMTC: The California massage therapy council created by California Business And Professions Code section 4600 and following sections.

• CAMTC CERTIFICATE: A current and valid certificate issued by the CAMTC.

• CITY: The city of Temple City.

• CITY COUNCIL: The city council of the city of Temple City.

CITY MANAGER: The city manager of the city of Temple City, or his or her designated representative.

COUNTY: The county of Los Angeles.

CUSTOMER AREA: Any area open to customers of a massage business or establishment.

EMPLOYEE: Any person, other than a massage therapist or manager, who performs services at the massage establishment and receives compensation from the operator of the massage establishment for such services, including an independent contractor, while on the premises of the massage establishment.

HEALTH DEPARTMENT: The Los Angeles County department of health services.

MANAGER: The person(s) designated by the operator of the massage establishment to act as the representative and agent of the operator in managing day to day operations with the same liabilities and responsibilities. Evidence of management includes, but is not limited to, evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules, or purchase supplies. A manager may also be an operator.

MASSAGE BUSINESS OR ESTABLISHMENT: Any business or establishment, including a sole proprietor or independent contractor, conducted within the city where any person engages in, conducts, carries on or permits to be engaged in, conducted or carried on, for money or any other consideration, the administration to another person of a massage.

MASSAGE OR MASSAGE THERAPY: Any method of treating the external parts of the body for remedial, hygienic, relaxation or any other similar purpose, whether by means of pressure on, friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or other manner of touching external parts of the body with the hands, or with the aid of any mechanical or electrical apparatus or appliance with or without supplementary aids such as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment or other similar preparations commonly used in this practice and shall include herbal body wraps. For the purposes of this article, "massage" or "massage therapy" includes the techniques of acupressure and reflexology.

MASSAGE THERAPIST: Any person who administers to another person a massage for any form of consideration.

MASSAGE THERAPY ACT: Chapter 10.5 of division 2 of the California Business And Professions Code (beginning at section 4600).

OPERATOR: A sole proprietor of, a general partner of, or all persons who have an ownership interest in, a massage business or establishment.

PERSON: Any individual, corporation, partnership, association or other group or combination of individuals acting as an entity.

SHERIFF: The designated representative of the Los Angeles County sheriff's department.

SHERIFF'S DEPARTMENT: The Los Angeles County sheriff's department.

SPECIFIED CRIMINAL OFFENSE: One or more of the following:

A. Pleading guilty or nolo contendere to, or being convicted in a court of competent jurisdiction, within five (5) years of the date of filing the application, a misdemeanor or felony crime involving sexual misconduct, including, but not limited to, the following:

1. Chapter 1 of title 9 of the Penal Code (sections 261 - 269) relating to sexual crimes; or

2. Chapter 8 of title 9 of the Penal Code (sections 314 - 318.6) relating to indecent exposure, obscenity, and disorderly establishments; or

3. Penal Code section 647(a) or (b) relating to prostitution; or

4. Any similar offenses under the criminal code or Penal Code of this state or any other states or countries; or

B. Having permitted within five (5) years of filing the application, through an act of omission or commission, an employee or agent to engage in any type of moral turpitude or sexual misconduct offense listed in subsection A of this definition (the conduct of the employee or agent, if such resulted in a conviction or a plea of nolo contendere or guilty, will be considered imputed to the principal). (Ord. 16-1010)

A. Permit Required: No massage business or establishment may operate without first obtaining a conditional use permit in accordance with title 9, chapter 1, article F of this code. All operations must be conducted at the site identified in the conditional use permit and comply with all conditions contained in the conditional use permit.

B. Exceptions: Subsection A of this section shall not apply to the following:

1. Medical offices, state licensed hospitals, nursing homes, and state licensed physical or mental health facilities where massage therapy is provided exclusively by physicians, surgeons, chiropractors, osteopaths, naturopaths, podiatrists, acupuncturists, physical therapists, registered nurses or vocational nurses duly licensed to practice their respective profession in the state.

2. Barbershops, beauty parlors, beauty salons, hair salons, day spas, and nail salons where massage therapy is provided exclusively by barbers, cosmetologists, estheticians, or manicurists licensed to practice their respective profession under the laws of the state while performing activities within the scope of their license, provided that such massage is limited solely to the neck, face, scalp, feet, hands, arms, and lower limbs up to the knees of their patrons. (Ord. 16-1010)

A. Massage Businesses And Establishments: No person may engage in, conduct or carry on, or permit to be engaged in, conducted or carried on in any location within the city, a massage business or establishment unless all persons providing massage therapy at or on behalf of the massage business or establishment have a CAMTC certificate.

B. Massage Therapy: No person may engage in, conduct, carry on, or perform massage therapy within the city unless such person has a CAMTC certificate.

C. Exceptions: Subsections A and B of this section shall not apply to the following:

1. Any physician, surgeon, chiropractor, osteopath, naturopath, podiatrist, acupuncturist, physical therapist, registered nurse or vocational nurse duly licensed to practice their respective profession in the state.

2. Any treatment administered in good faith in the course of the practice of any healing art or profession by any person licensed to practice any such art or profession under the California Business And Professions Code or any other law of the state.

3. Barbers, cosmetologists, estheticians, and manicurists licensed to practice their respective profession under the laws of the state while performing activities within the scope of their license, provided that such massage is limited solely to the neck, face, scalp, feet, hands, arms, and lower limbs up to the knees of their patrons.

4. State licensed hospitals, nursing homes, and other state licensed physical or mental health facilities and their employees.

5. Persons who provide massage therapy to athletes or athletic teams, facilities or events, so long as such persons do not practice massage therapy as their primary occupation within the city.

6. Approved schools and their employees that provide massage therapy education or training and their students in training, provided that such students perform massage therapy only under the direct personal supervision of an instructor. (Ord. 16-1010)

A. Business Permit Required: The operator of each massage business or establishment must obtain a business permit pursuant to this article prior to commencing operation or providing any massage therapy and must thereafter maintain a valid business permit.

B. Business Permit Application: The application for a business permit will be made in accordance with the provisions of this article. Each applicant for a massage business permit must provide the following information where applicable as determined by the city, with the application:

1. The full true name under which the massage establishment will be conducted.

2. The present or proposed address where the massage establishment is to be conducted.

3. The applicant's full, true name, any other names used within the past five (5) years, date of birth, California driver's license number or California identification number, present residence address and residence telephone number, and the sex, height, weight, color of hair, and color of eyes of the applicant.

4. Acceptable written proof that the applicant is at least eighteen (18) years of age.

5. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the names and residence addresses and telephone numbers of each of its current officers and directors, and of each stockholder holding more than five percent (5%) of the stock of that corporation.

6. If the applicant is a partnership, the application shall set forth the name, residence address and telephone numbers of each of the partners, including each of the limited partners. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership. If one or more of the partners is a corporation, the provisions of this section pertaining to corporate applicants shall apply.

7. A complete description of all services to be provided at the massage establishment.

8. The names and addresses of each massage therapist providing massage therapy at or on behalf of the business or establishment, including whether they are a full time employee or an independent contractor, and proof that each such massage therapist has a valid CAMTC certificate.

9. The name of the person(s) designated by the applicant to act as manager of the massage establishment. The manager shall be required, at all times, to meet all of the applicable requirements of this article.

10. A photograph of passport quality for each manager and massage therapist employed at the massage business or establishment.

11. A description of any other business to be operated on the same premises, or on adjoining premises, owned or controlled by the applicant.

12. The name and address of the owner and lessor of the real property upon or in which the massage establishment is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the property that a massage establishment will be located on his/her property.

13. Business, occupation, or employment history of the applicant for the three (3) years immediately preceding the date of the application.

14. The business license and permit history of the applicant, including whether such person, in previously operating in this city, or another city or state under license or permit, has had such license or permit revoked or suspended, and the reason for such action.

15. An affidavit that the applicant has not been convicted of or permitted any specified criminal offense. The applicant and operator of the massage establishment must provide proof of a Live Scan or other similar city approved background check.

16. A nonrefundable business permit fee, and renewal fee in the case of a business permit renewal, as set by resolution of the city council shall be paid to the city to defray the actual cost of processing the business permit.

17. A floor plan of the premises to be occupied by the massage establishment, including any adjacent space to be leased, owned or occupied by the operator of the massage establishment, and showing all entrances, exits, windows, interior doors, restrooms, and all other separately enclosed rooms including, but not limited to, closets, storerooms, break rooms, and changing rooms.

18. An acknowledgment that by applying for a business permit, the applicant understands that they are responsible for all violations of employees or independent contractors that may take place in the massage business or establishment that they own or manage, including whether each employee or independent contractor holds a CAMTC certificate, and that such violations are grounds for revocation of the business permit.

C. Inspection Of Premises: Upon receipt and/or after approval of a complete application, a business permit officer will cause the periodic inspection of the proposed premises of any fixed location massage business or establishment for compliance with the requirements of this article and code.

D. Issuance Of Permit: Upon receipt of a written application for a business permit for an establishment, a business permit officer shall ascertain whether such business permit should be issued as requested. Upon the completion of the review, the city must issue the business permit if it finds:

• 1. The required fee has been paid; and
• 2. The application conforms in all respects to the provisions of this article; and
• 3. The applicant has not made a material misrepresentation or omission in the application; and
• 4. The applicant is at least eighteen (18) years of age; and
• 5. A conditional use permit has been approved to operate the massage establishment at the proposed location; and

6. The massage establishment as proposed by the applicant would comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards.

E. Denial Of Permit: If a business permit officer finds that any of the applicable requirements of this article or this code are not satisfied, including any conviction for or the permitting of a specified criminal offense, recent history of prior business license or permit suspension or revocation, or evidence that the applicant has provided materially false information, the application will be denied. The decision of a business permit officer to deny a business permit application or renewal may be appealed pursuant to the procedures set forth in section 5-2E-7 of this article.

F. Permit Renewal: A massage business permit shall expire on December 31 of the year in which it is issued and shall be subject to annual renewals thereafter. A business permit must be renewed annually in the same manner as a new permit as provided in this article, at which time the applicant must provide proof that all applicable requirements of this article and this code remain satisfied.

G. Transfer Of Permit Prohibited: Upon the sale or transfer of any interest in a massage business or establishment, the business permit will become void. The person acquiring the interest in a massage business or establishment must submit a new business permit application and receive approval of such permit in accordance with the provisions of this article.

H. Notification Of Changes In Registered Massage Therapists: Each permittee must submit to the city the names and applicable CAMTC certificate of any new massage therapists not previously included in the list required under subsection B8 of this section who are hired or retained to provide massage therapy at or on behalf of the business or establishment, including whether they will be an employee or independent contractor, prior to such person commencing the provision of any massage therapy services. In addition, any discharge or termination of the services of a massage therapist must be reported to the city within five (5) business days of such event.

I. Revocation Or Suspension Of Permit: The following grounds constitute a basis for the revocation or suspension of a permit:

1. The misrepresentation of a material fact by an applicant in obtaining a permit; or

2. The continuation of the operations of the permittee under such permit will be detrimental to the public health, safety, peace, welfare or morals, or is found to constitute a public nuisance; or

3. The violation of any law related to the operation of the applicable business, including any violations of this code or a specified criminal offense; or

4. The violation of any condition imposed on the permit.

J. Revocation/Suspension Procedures:

1. Complaints against any permittee must be in writing and must set forth one or more of the grounds enumerated above. Complaints must be filed with, or may be initiated by, a business permit officer, who will then conduct an investigation to determine whether the complaint is sufficient to show probable cause for the revocation or suspension of the permit. A written report of any officer, employee or agent of the city disclosing violations of any law by the permittee or the permittee's agents or employees will also be deemed a complaint within the meaning of this section. All complaints must be verified unless made by city officers, employees, or agents in their official capacity.

2. Upon completion of the business permit officer's investigation, the business permit officer will report the results to the city manager, together with a recommendation as to whether grounds exist to revoke or suspend the permit or whether the complaint should be disregarded.

3. Based upon the report of such business permit officer and such additional investigation as the city manager may deem appropriate, the city manager will determine whether the complaint constitutes a sufficient basis to revoke or suspend the permit, and if so, will issue a written order of revocation or suspension to the permittee setting forth the grounds for revocation or suspension of the permit. Such written order must be sent by certified mail to the permittee's last known address or be personally delivered. The order must also provide notice that the permit revocation or suspension will become final within ten (10) days of the date of mailing or personal delivery of the order unless it is timely appealed in the manner provided in section 5-2E-7 of this article. (Ord. 16-1010)

No person shall engage in, conduct, carry on, or permit to be engaged in, conducted, or carried on, any massage establishment, unless each and all of the following requirements are met:

A. Massage operations shall be carried on or conducted, and the premises shall be open, only between the hours of eight o'clock (8:00) A.M. and ten o'clock (10:00) P.M. of any day. A massage begun anytime before ten o'clock (10:00) P.M. must nevertheless terminate at ten o'clock (10:00) P.M. All customers and visitors shall be excluded from the massage establishment by that time. The hours of operation shall be displayed in a conspicuous public place in the lobby within plain view of the entrance and clearly visible from the outside.

B. A person designated as a manager shall be on the massage establishment premises at all times of operation and must be registered with the city by the operator to receive all complaints and be responsible for all violations taking place on the premises. The appointment of a manager must be in writing with the manager in charge of the premises acknowledging this appointment. All managers must be registered with the city prior to being employed in this position, and all managers must possess a valid CAMTC certificate.

C. The massage establishment must post signs specifying a list of services available, the cost of such services, and notice indicating that the massage establishment and the massage rooms do not provide complete privacy and are subject to inspection by the city and health officials without prior notice. Such signs shall be posted in bold minimum one inch (1") type, in English and such other languages as may be convenient to communicate such services, in an open public place within plain view of the entry of the premises, and shall be described in readily understandable terms. No operator or manager shall permit, and no massage therapist shall offer or perform, any service other than those posted pursuant to this section.

D. The massage establishment business permit and a copy of the CAMTC certificate of each and every massage therapist employed in the massage establishment shall be displayed in an open and conspicuous place within plain view of the entry of the massage establishment premises.

E. Every massage establishment shall require all customers to sign a register book. The manager shall assure that the massage establishment shall keep an accurate register book showing the name and address of each customer in clear and legible writing, verified by the customer's driver's license or identification card, the name of the massage therapist administering the treatment, and the type of treatment administered. Such register books shall be maintained on a form approved by the city. Such books shall be open to inspection by officials with responsibility for enforcement of this article during regular business hours upon demand, written or oral, and without use of subpoena or court process; and may not be used for any other purpose, including use of the file by operators, managers and employees of the establishment. Such register books shall be maintained on the premises of the massage establishment for a period of two (2) years.

F. Massage establishments shall at all times be equipped with an adequate supply of clean towels, coverings, and linens. Clean towels, coverings, and linens shall be stored in enclosed cabinets. Separate enclosed cabinets shall be provided for the storage of clean and soiled linens and shall be plainly marked "clean linen" and "soiled linen". Towels and linens shall not be used on more than one patron, unless they have first been laundered and disinfected. Towels and linens shall be laundered or changed promptly after each use. Disposable towels and coverings shall not be used on more than one patron. Soiled linens and paper towels shall be deposited in separate, marked receptacles.

G. Adequate bathing, dressing, locker, and toilet facilities shall be provided for patrons. All shower, toilet, and washing facilities shall be thoroughly cleaned and disinfected with a disinfectant approved by the health department as needed, and at least once each day the premises are open.

H. If wet and dry heat rooms, steam and vapor rooms, cabinets, tanning booths, whirlpool baths and pools are offered, they shall be thoroughly cleaned and disinfected with a disinfectant approved by the health department as needed, and at least once each day the premises are open. Bathtubs shall be thoroughly cleaned after each use with a disinfectant approved by the health department. All walls, ceilings, floors, and other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition.

I. Instruments for performing massage shall not be used on more than one patron unless they have been sterilized, using approved sterilization methods. Each operator and/or on duty manager shall provide and maintain on the premises adequate equipment for disinfecting and sterilizing instruments used in massage.

J. All massage therapists shall be subject to the dress code provided in Business And Professions Code section 4909(a)(10). All managers and employees who are not massage therapists shall wear clean, nontransparent outer garments that continuously cover the area from the bottom of the neck to the top of the kneecap, shall remain clothed while on the massage establishment premises, and shall not expose their genitals, pubic area, buttocks, or breasts.

K. No person shall enter, be or remain in any part of a massage establishment while in possession of, consuming, or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs dispensed by a pharmacy licensed through the state of California, board of pharmacy. The operator and manager shall not permit the storage of alcoholic beverages or condoms upon such premises.

L. All exterior doors (except a rear entrance for employees only) shall remain unlocked during business hours, unless there is no massage establishment staff available to assure the security of clients and massage therapists who are behind closed doors.

M. Except as provided in subsection L of this section, doors to dressing rooms, massage rooms, and treatment rooms may not be locked.

N. No massage establishment or accessory use locations employing massage therapists shall be equipped with tinted or "one-way" glass in any room or office.

O. Every operator or manager shall report to the city any change of employees, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the city. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five (5) days of the date of hire or termination.

P. The operator and/or on duty manager shall consent to the unannounced inspection of the massage establishment by the city and the county fire, sheriff's, and health departments for the purpose of determining that the provisions of this article or other applicable laws or regulations are met.

1. The city and the county fire, sheriff's, and health departments may, from time to time, make an unannounced inspection of each massage establishment for the purpose of determining that the provisions of this article, state law or other applicable laws or regulations are met. Criminal investigations may be conducted as directed by the sheriff's department. The sheriff's department and/or city may inspect the occupied massage rooms for the purpose of determining that the provisions of this article are met. During an inspection, the sheriff's department and/or the city may verify the identity of all on duty managers, therapists, and employees.

2. An operator, manager, massage therapist, or employee is prohibited from refusing to permit an inspection of the massage establishment premises by a representative of the city or a Los Angeles County regulatory official at any time it is occupied or open for business, as required by this section.

Q. No person or persons shall live inside the massage establishment at any time. No massage therapist or other person shall be allowed to occupy the massage establishment after one hour of closing or before one hour of opening. Bona fide cleaning contractors are exempt from this provision.

R. No electrical, mechanical or artificial device shall be used by the operator, manager, therapist, or any employee of the massage establishment for audio and/or video recording within dressing rooms, massage rooms, or treatment rooms, or the conversation or other sounds within dressing rooms, massage rooms, or treatment rooms.

S. The operator or on duty manager of the massage establishment shall keep a complete and current list of the names, residence addresses, and telephone numbers of all massage therapists and employees of the massage establishment and the name, residence address and telephone number of the manager purported to be principally in charge of the operation of the massage establishment. This roster shall be written in English, kept on the premises and be available for inspection by any official charged with enforcement of this article.

T. Each massage establishment shall provide to all customers clean, sanitary and opaque coverings capable of covering the patrons' specified anatomical areas including the genital and pubic areas, anus, and female breast consistent with state of California Government Code section 51034. No common use of such coverings shall be permitted and reuse is prohibited unless adequately cleaned.

U. No massage establishment shall place, publish, distribute, or cause to be placed, published, or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers that any service is available other than those services described in this article. No massage establishment shall employ language in the text of such advertising that would reasonably suggest to prospective customers that any service is available other than those services authorized by this article.

V. No person shall engage in, conduct, or carry on the business of a massage establishment unless there is on file with the city, in full force and effect at all times, documents issued by an insurance company authorized to do business in the state of California evidencing that the licensee is insured under a liability insurance policy providing minimum coverage of one hundred thousand dollars ($100,000.00) for injury or death to one person arising out of the operation of any massage establishment and the administration of a massage.

W. All massage establishments must comply with all state and federal laws and regulations for persons with a disability, including all applicable antidiscrimination laws.

X. No person(s) other than valid CAMTC certificate holders, employees, customers, vendors, and service providers will be allowed beyond the front lobby, located directly inside the front door entrance during hours of operation.

Y. Minimum lighting shall be provided in accordance with article 220 of the national electrical code, and, in addition, at least one artificial light of not less than forty (40) watts shall be illuminated in each room or enclosure where massage services are performed on customers.

Z. Massages shall be administered only on standard massage tables, and not on pads or beds. Pads used on massage tables shall be covered with a durable washable plastic or other waterproof material acceptable to the health department.

AA. No massage business located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area shall block visibility into the interior reception and waiting areas through the use of curtains, closed blinds, tints, or any other material that obstructs or darkens the view into the premises or by signs that cover more than fifteen percent (15%) of any windowpane. The interior of the business shall be plainly visible from the exterior of the business by passing vehicles and pedestrians.

BB. Each establishment, operator, manager, massage therapist, and employee shall comply with the state of California Business And Professions Code sections 4600 - 4641.

CC. Each establishment, operator, manager, massage therapist, and employee shall ensure that at no time other than for brief moments during changing in private rooms will any genitalia or female breasts be uncovered. (Ord. 16-1010)

A. Any change of location of any massage establishment must first be approved by the city who must determine, prior to approval that all ordinances and regulations of the city will be complied with at any proposed new location and that a conditional use permit has been approved to operate the massage establishment at the new location.

B. Where a person holding a business permit issued under the provisions of this article changes the name of the massage establishment, such person must make an application to the city and pay a fee in an amount set by city council resolution to have said business permit amended to reflect the change of name.

C. No CAMTC certificate holder or massage establishment shall operate under any name or conduct any establishment under any designation not specified in the CAMTC certificate or business permit issued pursuant to this article.

D. Any application for an extension or expansion of a building or other place of business of a massage establishment shall require compliance with the city's zoning regulations.

E. A separate business permit shall be required for each location of a massage establishment.

F. If during the life of a massage establishment business permit the permittee has any change in information concerning the original application, notification of such change(s) must be made to the city, in writing, within thirty (30) days of the change(s).

G. Any massage establishment which is legally permitted by the city upon the effective date of this article and has any type of change to the ownership or ownership structure shall be required to comply in full with all requirements of this article. (Ord. 16-1010)

A. Permit Denial:

1. An applicant may appeal the business permit officer's denial of a permit or permit renewal by filing a written notice of appeal with the city clerk setting forth the grounds for disagreement with the decision within ten (10) days of the date of the decision. The appeal must be accompanied by the applicable appeal fee.

2. The city clerk will then fix a time and place for the hearing of such appeal before the city manager, and must give notice to the appellant of the time and place of the hearing by certified mail or personal delivery to the appellant at the address provided in the appeal.

3. At the hearing, the city manager will have authority to determine all questions raised on such appeal, provided that no such determination may conflict with any substantive provision of this code or other applicable law. The decision of the city manager will be final, and will be effective upon the date that written notice of the decision is sent by certified mail or personally delivered to the appellant.

B. Permit Revocation Or Suspension:

1. A permittee may appeal the city manager's revocation or suspension order by filing a written notice of appeal with the city clerk setting forth the grounds for disagreement with the decision within ten (10) days of the date of the revocation or suspension order. The appeal must be accompanied by the applicable appeal fee established by city council resolution.

2. If an appeal of a revocation or suspension order is timely filed, the matter will be scheduled for a hearing within a reasonable time before a city appointed administrative hearing officer. The filing of such appeal will stay the revocation or suspension order until a final decision is made by the hearing officer. The permittee, and any other persons requesting notice must be given at least ten (10) days' written notice of the time and place of such hearing.

3. At the hearing, the hearing officer will determine whether a sufficient basis exists for the revocation or suspension of the permit based upon the complaint, applicable staff reports, the revocation or suspension order, and such other evidence as may be presented that is relevant to the proceedings. The permittee will be given a reasonable opportunity to be heard in conjunction with the revocation or suspension proceedings. The burden of proof will be upon the city to show that the facts and evidence is sufficient to constitute a basis for revocation or suspension of the permit. The proceedings before the hearing officer will be an informal administrative hearing and the rules of evidence, as generally applied in judicial proceedings, will not be applicable. However, city officials or representatives and the permittee will have the right of subpoena.

4. The hearing officer must issue a written decision on the appeal within ten (10) days of the conclusion of the hearing unless the city and the permittee agree to a different deadline. Notice of such decision must be provided to the permittee by certified mail or personal delivery.

5. The decision of the hearing officer will be effective upon the date of mailing or personal delivery of the decision, and will be final. (Ord. 16-1010)

ARTICLE F. ADULT ORIENTED BUSINESSES

SECTION:

It is the purpose of this article to regulate adult oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the City. The provisions of this article have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including adult oriented materials. Similarly, it is not the intent nor effect of this article to restrict or deny access by adults to adult oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult oriented entertainment to their intended market. Neither is it the intent nor effect of this article to condone or legitimize the distribution of obscene material. (Ord. 99-835; amd. Ord. 17-1022)

For the purpose of this article the following words and phrases shall have the meanings respectively ascribed to them by this section:

ADULT ORIENTED BUSINESS OPERATOR (OPERATOR): A person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of an adult oriented business or the conduct or activities occurring on the premises thereof.

ADULT ORIENTED BUSINESSES: Any one (1) of the following:

Adult Arcade: An establishment where, for any form of consideration, one (1) or more still or motion picture projectors, or similar machines, for viewing by five (5) or fewer persons each, are used to show films, computer generated images, motion pictures, videocassettes, slides or other photographic reproductions thirty percent (30%) or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

Adult Bookstore: An establishment that has thirty percent (30%) or more of its stock in books, magazines, periodicals or other printed matter, or of photographs, films, motion pictures, videocassettes, slides, tapes, records or other form of visual or audio representations which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities and/or specified anatomical areas.

Adult Cabaret: A nightclub, restaurant, or similar business establishment which: a) regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or b) which regularly features persons who appear seminude; and/or c) shows films, computer generated images, motion pictures, videocassettes, slides, or other photographic reproductions thirty percent (30%) or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

Adult Hotel/Motel: A hotel or motel or similar business establishment offering public accommodations for any form of consideration which: a) provides patrons with closed circuit television transmissions, films, computer generated images, motion pictures, videocassettes, slides, or other photographic reproductions thirty percent (30%) or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and b) rents, leases, or lets any room for less than a six (6) hour period, or rents, leases, or lets any single room more than twice in a twenty four (24) hour period.

Adult Motion Picture Theater: A business establishment where, for any form of consideration, films, computer generated images, motion pictures, videocassettes, slides or similar photographic reproductions are shown, and thirty percent (30%) or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

Adult Theater: A theater, concert hall, auditorium, or similar establishment which, for any form of consideration regularly features live performances which are distinguished or characterized by an emphasis on the display of specified anatomical areas or specified sexual activities.

Juice Bar And Other Places Dispensing Food Or Drink: Any food or beverage establishment where the persons owning or employed in the preparation or dispensation of such food or beverage appears before (or is discernable by) the patrons of such establishment as being nude, seminude or exhibiting the specified anatomical features, as described herein.

Modeling Studio: A business which provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who, for the purposes of sexual stimulation of patrons, display "specified anatomical areas" to be observed, sketched, photographed, painted, sculpted or otherwise depicted by persons paying such consideration. "Modeling studio" does not include schools maintained pursuant to standards set by the State Board of Education. "Modeling studio" further does not include a studio or similar facility owned, operated, or maintained by an individual artist or group of artists, and which does not provide, permit, or make available "specified sexual activities".

APPLICANT: A person who is required to file an application for a permit under this chapter, including an individual owner, managing partner, officer of a corporation, or any other operator, manager, employee, or agent of an adult oriented business.

BAR: Any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises.

DISTINGUISHED OR CHARACTERIZED BY AN EMPHASIS UPON: The dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon" the depiction or description of specified sexual activities or specified anatomical areas, the films so described are those whose dominant or predominant character and theme are the depiction of the enumerated sexual activities or anatomical areas. See Pringle v. City of Covina, 115 Cal.App.3 151 (1981).

FIGURE MODEL: Any person who, for pecuniary compensation, consideration, hire or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted.

HEALTH OFFICER: The Health Officer of the City of Temple City or his or her duly authorized representative.

NUDITY OR A STATE OF NUDITY: The showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernible turgid state.

OPERATE AN ADULT ORIENTED BUSINESS: The supervising, managing, inspecting, directing, organizing, controlling or in any way being responsible for or in charge of the conduct of activities of an adult oriented business or activities within an adult oriented business.

PERMITTEE: The person to whom an adult oriented business permit is issued.

PERSON: Any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

POLICE CHIEF: The Police Chief of the City of Temple City or the authorized representatives thereof.

REGULARLY FEATURES: With respect to an adult theater or adult cabaret means a regular and substantial course of conduct. The fact that live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities occurs on two (2) or more occasions within a thirty (30) day period; three (3) or more occasions within a sixty (60) day period; or four (4) or more occasions within a one hundred eighty (180) day period, shall to the extent permitted by law be deemed to be a regular and substantial course of conduct.

SEMINUDE: A state of dress in which clothing covers no more than the genitals, pubic region, buttocks, areola of the female breast, as well as portions of the body covered by supporting straps or devices.

SPECIFIED ANATOMICAL AREAS: Any of the following:

A. Less than completely and opaquely covered human: 1) genitals or pubic region; 2) buttocks; and 3) female breast below a point immediately above the top of the areola; and

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

C. Any device, costume or covering that simulates any of the body parts included in subsection A or B of this definition.

SPECIFIED SEXUAL ACTIVITIES: Any of the following, whether performed directly or indirectly through clothing or other covering:

A. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast;

B. Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;

C. Masturbation, actual or simulated;

D. Excretory functions as part of or in connection with any of the other activities described in subsections A through C of this definition. (Ord. 99-835; amd. Ord. 17-1022)

A. It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City of Temple City the operation of an adult oriented business unless the person first obtains and continues to maintain in full force and effect a permit from the City of Temple City as herein required, i.e., an adult oriented business regulatory permit.

B. It shall be unlawful for any persons to engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in an adult oriented business unless the person first obtains and continues in full force and effect a permit from the City of Temple City as herein required, i.e., an adult oriented business performer permit. (Ord. 99-835; amd. Ord. 17-1022)

Every person who proposes to maintain, operate or conduct an adult oriented business in the City of Temple City shall file an application with the City Manager upon a form provided by the City of Temple City and shall pay a filing fee, as established by resolution adopted by the City Council from time to time, which shall not be refundable. (Ord. 99-835; amd. Ord. 17-1022)

A. Adult oriented business regulatory permits are nontransferable, except in accordance with section 5-2F-7 of this article. Therefore, all applications shall include the following information:

1. If the applicant is an individual, the individual shall state his or her legal name, including any aliases, address, and submit satisfactory written proof that he or she is at least eighteen (18) years of age.

2. If the applicant is a partnership, the partners shall state the partnership's complete name, address, the names of all partners, whether the partnership is general or limited, and attach a copy of the partnership agreement, if any.

3. If the applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of California, the names and capacity of all officers and directors, the name of the registered corporate agent and the address of the registered office for service of process.

B. If the applicant is an individual, he or she shall sign the application. If the applicant is other than an individual, an officer of the business entity or an individual with a ten percent (10%) or greater interest in the business entity shall sign the application.

C. If the applicant intends to operate the adult oriented business under a name other than that of the applicant, the applicant shall file the fictitious name of the adult oriented business and show proof of registration of the fictitious name.

D. A description of the type of adult oriented business for which the permit is requested and the proposed address where the adult oriented business will operate, plus the names and addresses of the owners and lessors of the adult oriented business site.

E. The address to which notice of action on the application is to be mailed.

F. The names of all employees, independent contractors, and other persons who will perform at the adult oriented business, who are required by section 5-2F-8 of this article to obtain an adult oriented business performer license (for ongoing reporting requirements see section 5-2F-8 of this article).

G. A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the adult oriented business. The sketch or diagram need not be professionally prepared, but 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 (±6").

H. A certificate and straight line drawing prepared within thirty (30) days prior to application depicting the building and the portion thereof to be occupied by the adult oriented business, and: 1) the property line of any other adult oriented business within eight hundred feet (800') of the primary entrance of the adult oriented business for which a permit is requested; and 2) the property lines of any church, school, park, residential zone or use within eight hundred feet (800') of the primary entrance of the adult oriented business.

I. A diagram of the off street parking areas and premises entries of the adult oriented business showing the location of the lighting system required by subsection 5-2F-12C of this article.

J. The City Manager shall immediately designate a Special Hearing Officer. If the Special Hearing Officer determines that the applicant has completed the application improperly, the Special Hearing Officer shall promptly notify the applicant of such fact and, on request of the applicant, grant the applicant an extension of time of ten (10) days or less to complete the application properly. In addition, the applicant may request an extension, not to exceed ten (10) days, of the time for the Special Hearing Officer to act on the application. The time period for granting or denying a permit shall be stayed during the period in which the applicant is granted an extension of time.

K. The fact that an applicant possesses other types of State or City permits or licenses does not exempt the applicant from the requirement of obtaining an adult oriented business regulatory permit. (Ord. 99-835; amd. Ord. 17-1022)

A. Upon receipt of a completed application and payment of the application and permit fees, the Special Hearing Officer shall immediately stamp the application as received and promptly investigate the information contained in the application to determine whether the applicant shall be issued an adult oriented business regulatory permit.

B. Within thirty (30) days of receipt of the completed application, the Special Hearing Officer shall complete the investigation, grant or deny the application in accordance with the provisions of this section, and so notify the applicant as follows:

1. The Special Hearing Officer shall write or stamp "Granted" or "Denied" on the application and date and sign such notation.

2. If the application is denied, the Special Hearing Officer shall attach to the application a statement of the reasons for denial, and advise the applicant in writing that there is a ninety (90) day statute of limitations under Code of Civil Procedure 1094.6 in which he may seek court review.

3. If the application is granted, the Special Hearing Officer shall attach to the application an adult oriented business regulatory permit.

4. The application as granted or denied and the permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the address stated in the application.

C. The Special Hearing Officer shall grant the application and issue the adult oriented business regulatory permit upon findings that the proposed business meets the locational criteria of subsection 9-1T-3D of this Code; and that the applicant has met all of the development and performance standards and requirements of section 5-2F-12 of this article, unless the application is denied for one (1) or more of the reasons set forth in section 5-2F-6 of this article. The permittee shall post the permit conspicuously in the adult oriented business premises.

D. Any other provision of this Code notwithstanding, this City recognizes its obligations under Federal and State constitutional guarantees to provide decisions without delay with regard to applications for adult businesses. Accordingly, whenever any such application is made, the City will conduct its proceedings in such fashion as:

1. To indicate to applicant in writing within fifteen (15) days whether the application is complete, and if not complete to inform the applicant what additional information is required to make such application complete;

2. To make its decision to approve or disapprove such application within twenty (20) days after the application therefor is complete.

a. If any such application is denied, the applicant may within ninety (90) days as provided in Code of Civil Procedure 1094.6 apply to a court of competent jurisdiction for a review of such denial; in such case, City shall expedite a judicial decision with regard thereto in order to have such judicial decision completed within thirty (30) days after applicant files the same, discounting such time as applicant itself causes any delay in such court proceedings.

b. City shall do nothing to cause any delay in the process above set forth.

c. If City cannot comply with such administrative twenty (20) day deadline, or if a judicial decision cannot be obtained within thirty (30) days after applicant's filing (disregarding any delays caused by applicant), then City shall immediately, upon written request from applicant, issue an interim defacto license for such activity to the extent it is mandated by State or Federal guarantees; and to the extent it complies with every other relevant Municipal Code or Zoning Code section with regard thereto.

(1) Such interim defacto license shall continue only until such court decision is rendered, provided that the same may be revoked or suspended, if applicant causes any delay in such proceedings.

(2) Such interim defacto license shall continue on a day to day basis until such deadlines are met.

(3) Such interim defacto license shall be deemed to be in force and effect for the limited purpose of according to an applicant its constitutional rights; and shall not be deemed a decision on the merits nor an indication of permanency.

(4) Any applicant asking for and receiving such interim defacto license shall assume the risk of any expenditures or reliance upon such temporary activity in the event that the permanent license is denied by the courts or City.

(5) This subsection D shall remain in effect for only so long as: a) the case of Baby Tam v. Las Vegas 154 F3d 1097 remains in effect and has not been overruled; or b) the State Legislature adopts legislation providing a prompt review under section 1094.5, 1094.6, 1094.7 or 1094.8 of the Code of Civil Procedure. Upon either such event this subsection D shall be inoperative. (Ord. 99-835; amd. Ord. 17-1022)

The Special Hearing Officer shall deny the application for any of the following reasons:

A. The building, structure, equipment, or location used by the business for which an adult oriented business regulatory permit is required do not comply with the requirements and standards of the health, zoning, fire and safety laws of the City and the State of California, or with the locational or development and performance standards and requirements of these regulations.

B. The applicant, his or her employee, agent, partner, director, officer, shareholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for an adult business regulatory permit.

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

D. The required application fee has not been paid.

E. The adult oriented business does not comply with the zoning ordinance locational standards, subsections 9-1T-3D through 9-1T-3F of this Code.

Each adult oriented business regulatory permit shall expire one (1) year from the date of issuance, and may be renewed only by filing with the City Manager a written request for renewal, accompanied by the annual permit fee and a copy of the permit to be renewed. The request for renewal shall be made at least thirty (30) days before the expiration date of the permit. When made less than thirty (30) days before the expiration date, the expiration of the permit will not be stayed. Applications for renewal shall be acted on as provided herein for action upon applications for permits. (Ord. 99-835; amd. Ord. 17-1022)

A. A permittee shall not operate an adult oriented business under the authority of an adult oriented business regulatory permit at any place other than the address of the adult oriented business stated in the application for the permit.

B. A permittee shall not transfer ownership or control of an adult oriented business or transfer an adult oriented business regulatory permit to another person unless and until the transferee obtains an amendment to the permit from the City Manager stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the City Manager in accordance with sections 5-2F-3 and 5-2F-4 of this article, accompanies the application with a transfer fee in an amount set by resolution of the City Council, and the City Manager determines in accordance with section 5-2F-5 of this article that the transferee would be entitled to the issuance of an original permit.

C. No permit may be transferred when the City Manager has notified the permittee that the permit has been or may be suspended or revoked.

D. Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and the permit shall be deemed revoked. (Ord. 99-835; amd. Ord. 17-1022)

A. No person shall engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in an adult oriented business, without a valid adult oriented business performer permit issued by the City. All persons who have been issued an adult oriented business regulatory permit shall promptly supplement the information provided as part of the application for the permit required by section 5-2F-2 of this article, with the names of all performers required to obtain an adult oriented business performer permit, within thirty (30) days of any change in the information originally submitted. Failure to submit such changes shall be grounds for suspension of the adult oriented business regulatory permit.

B. The City Manager shall grant, deny and renew adult business employee permits.

C. The application for a permit shall be made on a form provided by the City Manager. An original and two (2) copies of the completed and sworn permit application shall be filed with the City Manager.

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

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

• 2. Age, date and place of birth;
• 3. Height, weight, hair and eye color;
• 4. Present residence address and telephone number;
• 5. Whether the applicant has ever been convicted of:

a. Any of the offenses set forth in sections 315, 316, 266a, 266b, 266c, 266e, 266g, 266h, 266i, 647(a), 647(b) and 647(D) of the California Penal Code as those sections now exist or may hereafter be amended or renumbered.

b. The equivalent of the aforesaid offenses outside the State of California;

6. Whether such person is or has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other jurisdiction to engage in prostitution in such other jurisdiction. If any person mentioned in this subsection has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other state to engage in prostitution, a statement shall be submitted giving the place of such registration, licensing or legal authorization, and the inclusive dates during which such person was so licensed, registered, or authorized to engage in prostitution;

7. State driver's license or identification number;

8. Satisfactory written proof that the applicant is at least eighteen (18) years of age;

9. The applicant's fingerprints on a form provided by the Police Department, and a color photograph clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant;

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

E. The completed application shall be accompanied by a nonrefundable application fee. The amount of the fee shall be set by resolution of the City Council.

F. Upon receipt of an application and payment of the application fees, the City Manager or his Special Hearing Officer shall immediately stamp the application as received and promptly investigate the application.

G. If the City Manager determines that the applicant has completed the application improperly, the City Manager shall promptly notify the applicant of such fact and grant the applicant an extension of time of not more than ten (10) days to complete the application properly. In addition, the applicant may request an extension, not to exceed ten (10) days, of the time for the City Manager to act on the application. The time period for granting or denying a permit shall be stayed during the period in which the applicant is granted an extension of time.

H. The foregoing time limits shall be subordinate to the overall time limits set forth in subsection 5-2F-5D of this article. (Ord. 99-835; amd. Ord. 17-1022)

A. Within five (5) days after receipt of the properly completed application, the City Manager or his Special Hearing Officer shall grant or deny the application and so notify the applicant as follows:

1. The City Manager shall write or stamp "Granted" or "Denied" on the application and date and sign such notation.

2. If the application is denied, the City Manager shall attach to the application a statement of the reasons for denial.

3. If the application is granted, the City Manager shall attach to the application an adult oriented business employee permit.

4. The application as granted or denied and the permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the residence address stated in the application.

B. The City Manager or his Special Hearing Officer shall grant the application and issue the permit unless the application is denied for one (1) or more of the reasons set forth in subsection D of this section.

C. The foregoing time limits shall be subordinate to the provisions of subsection 5-2F-5D of this article.

D. The City Manager or his Special Hearing Officer shall deny the application for any of the following reasons:

1. The applicant has knowingly made any false, misleading, or fraudulent statement of a material fact in the application for a permit or in any report or document required to be filed with the application;

2. The applicant is under eighteen (18) years of age;

3. The adult oriented business employee permit is to be used for performing in a business prohibited by State or City law.

4. The applicant has been registered in any state as a prostitute.

5. The applicant has been convicted of any of the offenses enumerated in subsection 5-2F-8D5 of this article or convicted of an offense outside the State of California that would have constituted any of the described offenses if committed within the State of California. A permit may be issued to any person convicted of the described crimes if the conviction occurred more than five (5) years prior to the date of the application.

E. Each adult oriented business performer permit shall expire one (1) year from the date of issuance and may be renewed only by filing with the City Manager a written request for renewal, accompanied by the application fee and a copy of the permit to be renewed. The request for renewal shall be made at least thirty (30) days before the expiration date of the permit. When made less than thirty (30) days before the expiration date, the expiration of the permit will not be stayed. Applications for renewal shall be acted on as provided herein for applications for permits. (Ord. 99-835; amd. Ord. 17-1022)

An adult oriented business regulatory permit or adult oriented business performer permit may be suspended or revoked in accordance with the procedures and standards of this section.

A. On determining that grounds for permit revocation exist, the City Manager or his Special Hearing Officer shall furnish written notice of the proposed suspension or revocation to the permittee. 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 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 permittee, or shall be delivered to the permittee personally, at least ten (10) days prior to the hearing date. Hearings shall be conducted in accordance with procedures established by the City Manager, but at a minimum shall include the following:

1. All parties involved shall have a right to offer testimonial, documentary, and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The City Manager's or his Special Hearing Officer's decision may be appealed in accordance with section 5-2F-11 of this article.

B. A permittee may be subject to suspension or revocation of his permit, or be subject to other appropriate disciplinary action, for any of the following causes arising from the acts or omissions of the permittee, or an employee, agent, partner, director, stockholder, or manager of an adult oriented business:

1. The permittee has knowingly made any false, misleading or fraudulent statement of material facts in the application for a permit, or in any report or record required to be filed with the City.

2. The permittee, employee, agent, partner, director, stockholder, or manager of an adult oriented business has knowingly allowed or permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the adult oriented business, or in the case of an adult oriented business performer, the permittee has engaged in one (1) of the activities described below while on the premises of an adult oriented business:

a. Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation.

b. Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur.

c. Any conduct constituting a criminal offense which requires registration under section 290 of the California Penal Code.

d. The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of sections 315, 316, or 318 or subdivision b of section 647 of the California Penal Code.

e. Any act constituting a violation of provisions in the California Penal Code relating to obscene matter or distribution of harmful matter to minors, including, but not limited to, sections 311 through 313.4.

f. Any conduct prohibited by this article.

3. Failure to abide by an disciplinary action previously imposed by an appropriate City official.

C. After holding the hearing in accordance with the provisions of this section, if the City Manager or his Special Hearing Officer finds and determines that there are grounds for disciplinary action, based upon the severity of the violation, the Police Chief shall impose one (1) of the following:

• 1. A warning;
• 2. Suspension of the permit for a specified period not to exceed six (6) months;
• 3. Revocation of the permit. (Ord. 99-835; amd. Ord. 17-1022)

After denial of an application for an adult oriented business regulatory permit or an adult oriented business performer permit, or after denial of renewal of a permit, or suspension or revocation of a permit, the applicant or person to whom the permit was granted may seek review of such administrative action in accordance with this Code.

A. If the denial, suspension or revocation is affirmed on review, the applicant, permittee may seek prompt judicial review of such administrative action pursuant to California Code of Civil Procedure section 1094.5. The City shall make all reasonable efforts to expedite judicial review, if sought by the permittee.

B. The time limits set forth in subsection 5-2F-5D of this article shall prevail. (Ord. 99-835; amd. Ord. 17-1022)

A. Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated, designed and provided in accordance with the Fire Department and building regulations and standards adopted by the City of Temple City.

B. No adult oriented business shall be operated in any manner that permits the observation of any material or activities depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" from any public way or from any location outside the building or area of such establishment. This provision shall apply to any display, decoration, sign, show window or other opening. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times.

C. All off street parking area and premises entries of the sexually oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one (1) foot- candle of light on the parking surface and/or walkways. The required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the sexually oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct. The lighting shall be shown on the required sketch or diagram of the premises.

D. The premises within which the adult oriented business is located shall provide sufficient sound absorbing insulation so that noise generated inside said premises shall not be audible anywhere on any adjacent property or public right-of-way or within any other building or other separate unit within the same building.

E. Except for those businesses also regulated by the California Department of Alcoholic Beverage Control, an adult oriented business shall be open for business only between the hours of eight o'clock (8:00) A.M. and twelve o'clock (12:00) midnight on any particular day.

F. The building entrance to an adult oriented business shall be clearly and legibly posted with a notice indicating that persons under eighteen (18) years of age are precluded from entering the premises. Said notice shall be constructed and posted to the satisfaction of the Community Development Director or designee. No person under the age of eighteen (18) years shall be permitted within the premises at any time.

G. All indoor areas of the adult oriented business within which patrons are permitted, except restrooms, shall be open to view by the management at all times.

H. Any adult oriented business which is also an "adult arcade", shall comply with the following provisions:

1. 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 (2) or more manager's stations designated, 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 (1) of the manager's stations. The view required in this subsection must be direct line of sight from the manager's station.

2. The view area specified in subsection H1 of this section shall remain unobstructed by any doors, walls, merchandise, display racks, or other materials at all times. 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.

3. No viewing room may be occupied by more than one (1) person at any one time.

4. The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes between any two (2) such rooms such as would allow viewing from one (1) booth into another or such as to allow physical contact of any kind between the occupants of any two (2) such booths or rooms.

5. Customers, patrons or visitors shall not be allowed to stand idly by in the vicinity of any such video booths, or from remaining in the common area of such business, other than the restrooms, who are not actively engaged in shopping for or reviewing the products available on display for purchaser viewing. Signs prohibiting loitering shall be posted in prominent places in and near the video booths.

6. The floors, seats, walls and other interior portions of all video booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen or saliva in any such booths shall be evidence of improper maintenance and inadequate sanitary controls; repeated instances of such conditions may justify suspension or revocation of the owner and operator's license to conduct the adult oriented establishment.

I. All areas of the adult oriented business shall be illuminated at a minimum of the following foot-candles, minimally maintained and evenly distributed at ground level:

J. Adult oriented business shall provide and maintain separate restroom facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the restroom(s) for females, and female patrons and employees shall be prohibited from using the restroom(s) for males, except to carry out duties of repair, maintenance and cleaning of the restroom facilities. The restrooms shall be free from any adult material. Restrooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this subsection shall not apply to an adult oriented business which deals exclusively with sale or rental of adult material which is not used or consumed on the premises, such as an adult bookstore or adult video store, and which does not provide restroom facilities to its patrons or the general public.

K. The following additional requirements shall pertain to adult oriented businesses or any other business providing live entertainment depicting specified anatomical areas or involving specified sexual activities, except for businesses regulated by the Alcoholic Beverage Control Commission:

1. No person shall perform live entertainment for patrons of an adult oriented business except upon a stage at least eighteen inches (18") above the level of the floor which is separated by a distance of at least ten feet (10') from the nearest area occupied by patrons, and no patron shall be permitted within ten feet (10') of the stage while the stage is occupied by an entertainer. "Entertainer" shall mean any person who is an employee or independent contractor of the adult oriented business, or any person who, with or without any compensation or other form of consideration, performs live entertainment for patrons of an adult oriented business.

2. The adult oriented business shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use.

3. The adult oriented business shall provide an entrance/exit for entertainers which is separate from the entrance/exit used by patrons.

4. The adult oriented business shall provide access for entertainers between the stage and the dressing rooms which is completely separated from the patrons. If such separate access is not physically feasible, the adult oriented business shall provide a minimum three foot (3') wide walk aisle for entertainers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the entertainers capable of (and which actually results in) preventing any physical contact between patrons and entertainers.

5. No entertainer, either before, during or after performances, shall have physical contact with any patron and no patron shall have physical contact with any entertainer either before, during or after performances by such entertainer. This subsection shall only apply to physical contact on the premises of the adult oriented business.

6. Fixed rail(s) at least thirty inches (30") in height shall be maintained establishing the separations between entertainers and patrons required by this subsection.

7. No patron shall directly pay or give any gratuity to any entertainer and no entertainer shall solicit any pay or gratuity from any patron.

8. No owner or other person with managerial control over an adult oriented business (as that term is defined herein) shall permit any person on the premises of the adult oriented business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque coverage, and/or the female breast with less than a fully opaque coverage over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical part required to be covered.

L. Adult oriented businesses shall employ security guards in order to maintain the public peace and safety, based upon the following standards:

1. Adult oriented businesses featuring live entertainment shall provide at least one (1) security guard at all times while the business is open. If the occupancy limit of the premises is greater than thirty five (35) persons, an additional security guard shall be on duty.

2. Security guards for other adult oriented businesses may be required if it is determined by the Police Chief that their presence is necessary in order to prevent any of the conduct listed in subsection 5-2F-10B2 of this article from occurring on the premises.

3. Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. Security guards shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of State law. No security guard required pursuant to this subsection shall act as a door person, ticket seller, ticket taker, admittance person, or sole occupant of the manager's station while acting as a security guard.

The foregoing applicable requirements of this section shall be deemed conditions of adult oriented business regulatory permit approvals, and failure to comply with every such requirement shall be grounds for revocation of the permit issued pursuant to these regulations. (Ord. 99-835; amd. Ord. 17-1022)

Every permittee of an adult oriented business which provides live entertainment depicting specified anatomical areas or involving specified sexual activities must maintain a register of all persons so performing on the premises and their permit numbers. Such register shall be available for inspection during regular business hours by any police officer or health officer of the City of Temple City. (Ord. 99-835; amd. Ord. 17-1022)

A. Every adult oriented business shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such adult oriented business in a conspicuous place so that the same may be readily seen by all persons entering the adult oriented business.

B. The City Manager shall provide each adult oriented business performer required to have a permit pursuant to this chapter, with an identification card containing the name, address, photograph and permit number of such performer.

C. An adult oriented business performer shall have such card available for inspection at all times during which such person is on the premises of the adult oriented business. (Ord. 99-835; amd. Ord. 17-1022)

A. It shall be unlawful for any permittee, operator, or other person in charge of any adult oriented business to employ, or provide any service for which it requires such permit, to any person who is not at least eighteen (18) years of age.

B. It shall be unlawful for any permittee, operator or other person in charge of any adult oriented business to permit to enter, or remain within the adult oriented business, any person who is not at least eighteen (18) years of age. (Ord. 99-835; amd. Ord. 17-1022)

An applicant or permittee shall permit representatives of the Sheriff's Department, Health Department, Fire Department, Planning Division, or other City departments or agencies to inspect the premises of an adult oriented business for the purpose of ensuring compliance with the law and the development and performance standards applicable to adult oriented businesses, at any time it is occupied or opened for business. A person who operates an adult oriented business or his or her agent or employee is in violation of the provisions of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business. (Ord. 99-835; amd. Ord. 17-1022)

The provisions of this section regulating adult oriented businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the City Council of the City of Temple City nor shall it excuse the commission of a public nuisance. (Ord. 99-835; amd. Ord. 17-1022)

It shall be unlawful for any owner, operator, manager, or permittee in charge of or in control of an adult oriented business which provides live entertainment depicting specified anatomical areas or involving specified sexual activities to allow any person to perform such entertainment who is not in possession of a valid, unrevoked adult oriented business performer permit. (Ord. 99-835; amd. Ord. 17-1022)

All persons who possess an outstanding business license heretofore issued for the operation of an adult oriented business and all persons required by this article to obtain an adult oriented business performer permit, must apply for and obtain such a permit within ninety (90) days of the effective date of these actions. Failure to do so and continued operation of an adult oriented business, or the continued performances depicting specified anatomical areas or specified sexual activities in an adult oriented business after such time without a permit shall constitute a violation of this section. (Ord. 99-835; amd. Ord. 17-1022)

If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this article or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this article or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective. (Ord. 99-835; amd. Ord. 17-1022)

The City Council finds that this ordinance is enacted in order to mitigate the threat posed to the public peace, health, or safety by adult oriented businesses. In this regard, the findings set forth in section 1 of this ordinance are incorporated herein by reference. This ordinance either provides for the amendment of existing regulations applicable to adult oriented businesses or, for the first time, provides for zoning regulations which are specifically applicable to adult oriented business uses. Such uses are already allowed under the City's existing zoning regulations. Therefore, it can be seen with certainty that there is no possibility that this ordinance may have a significant adverse effect on the environment, and therefore the adoption of this ordinance is exempt from CEQA pursuant to section 15061(b)(3) of the CEQA guidelines. (Ord. 99-835; amd. Ord. 17-1022)

All City ordinances inconsistent herewith are hereby repealed. (Ord. 99-835; amd. Ord. 17-1022)

This article shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption. (Ord. 99-835; amd. Ord. 17-1022)