Chapter 5.25
ADULT-ORIENTED BUSINESSES
Sections:
5.25.030 Regulatory permit requirement.
5.25.040 Regulatory permit application.
5.25.050 Approval or denial of regulatory permit.
5.25.060 Development standards.
5.25.070 Performance standards.
5.25.090 Regulatory permit conditions.
5.25.100 Regulatory permit renewal.
5.25.110 Performer permit requirement.
5.25.120 Performer permit application.
5.25.130 Approval or denial of performer permit.
5.25.140 Confidentiality of erotic dancer information.
5.25.150 Presentation of performer permit.
5.25.010 Legislative purpose.
The purpose of this chapter is to mitigate the adverse secondary effects that can be generated by the unregulated operation of adult-oriented businesses. Prior to enacting this chapter, the city council considered studies that persuasively demonstrate these adverse secondary effects include, without limitation: depreciation of property values; increased criminal activity, litter, noise and vacancy rates; and interference with the enjoyment of property in the vicinity of such businesses. [Ord. 233 § 3, 2005; Ord. 96-9.1 § 3; Code 1990 § 6.8.01.]
5.25.020 Definitions.
For the purpose of this chapter and CMC Title 18, the following words and phrases shall mean:
“Adult-oriented business” means any of the following:
A. “Adult arcade” means a commercial establishment that as a regular and substantial course of conduct shows, in one or more viewing rooms less than or equal to 150 square feet, movies or still images characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
B. “Adult cabaret” means a commercial establishment that as a regular and substantial course of conduct emphasizes and seeks, through one or more erotic dancers, to arouse or excite the patrons’ sexual desires.
C. “Adult hotel/motel” means a commercial establishment that offers public accommodations and that satisfies both of the following criteria:
1. As a regular and substantial course of conduct provides patrons with movies or still images characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
2. Rents, leases or lets any single room for either:
a. Less than a six-hour period; or
b. More than twice in a 24-hour period.
D. “Adult merchandise store” means a commercial establishment that as a regular and substantial course of conduct sells or rents adult-oriented merchandise.
E. “Adult modeling studio” means a commercial establishment that as a regular and substantial course of conduct provides one or more figure models who, for purposes of arousing or exciting patrons’ sexual desires, expose specified anatomical areas to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted by patrons. “Adult modeling studio” does not include schools maintained pursuant to standards set by the California State Board of Education. “Adult modeling studio” also does not include a studio or similar facility that both:
1. Is owned, operated or maintained by an individual artist or group of artists; and
2. Does not provide, permit or make available specified sexual activities.
F. “Adult motion picture theater” means a commercial establishment that as a regular and substantial course of conduct shows, in one or more viewing rooms larger than 150 square feet, movies or still images characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
“Adult-oriented merchandise” means any of the following:
A. An audio tape, book, magazine, movie or still picture characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
B. Paraphernalia designed or marketed primarily for the stimulation of human genitals. This definition does not include birth control devices.
“Characterized by an emphasis upon” means the dominant theme of the object described by such phrase.
“Directly pay or give” means the placement of a gratuity by a patron on any portion of an erotic dancer’s person or clothing.
“Erotic dancer” means a person who dances or otherwise performs at an adult cabaret and who seeks to arouse or excite the patrons’ sexual desires.
“Figure model” means a person who poses in an adult modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted.
“Nudity” means any of the following:
A. The showing of human genitals, pubic area or buttocks with less than a fully opaque covering.
B. The showing of the female breast with less than a fully opaque covering of any part of the nipple.
C. The exposure of any device, costume or covering that gives the appearance of or simulates the human genitals, pubic hair, natal cleft, perineum, anal region or pubic hair region.
D. The exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola.
“Nuisance activity” means any of the following:
A. Disturbance of the peace.
B. Littering.
C. Public drinking of alcoholic beverages or drunkenness.
D. Public urination or defecation.
“Owner” means any of the following:
A. The sole proprietor of an adult-oriented business.
B. A general partner of a partnership that owns and operates an adult-oriented business.
C. A controlling shareholder in a corporation that owns and operates an adult-oriented business.
D. A person designated by the officers of a corporation to be the permit holder for an adult-oriented business owned and operated by the corporation.
“Performer permit” means an adult-oriented business performer permit authorized by this chapter.
“Police chief” means the police chief of the city or such person’s authorized representative.
“Regular and substantial course of conduct” means the existence of any of the following conditions:
A. At least 30 percent of the stock-in-trade is devoted to adult-oriented merchandise.
B. At least 30 percent of the total display area is devoted to adult-oriented merchandise.
C. At least 30 percent of the gross receipts of the business are derived from the sale or rental of adult-oriented merchandise.
D. On four or more days within a 30-day period, the establishment presents live entertainment by one or more erotic dancers.
E. On four or more days within a 30-day period, the establishment presents nonlive entertainment that is characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
“Regulatory permit” means an adult-oriented business regulatory permit authorized by this chapter.
“Specified anatomical areas” means any of the following:
A. Less than completely and opaquely covered human genitals, pubic region, buttocks and nipple of the female breast.
B. 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” means any of the following, whether performed directly or indirectly through clothing or other covering:
A. The fondling of human genitals, pubic region, buttocks, anus or female breast.
B. Sex acts, actual or simulated.
C. Excretory functions as part of, or in connection with, any of the other activities described in subsection (A) or (B) of this definition.
“Substantially enlarged” means the increase in floor area occupied by an adult-oriented business by more than 10 percent of its floor area as it existed at the time a regulatory permit was issued for the business. [Ord. 233 § 3, 2005; Ord. 96-9.1 § 3; Code 1990 § 6.8.02.]
5.25.030 Regulatory permit requirement.
It is unlawful for any person to operate an adult-oriented business unless the owner of such business first obtains, and continues to maintain in full force and effect, a regulatory permit for such business. [Ord. 233 § 3, 2005; Ord. 96-9.1 § 3; Code 1990 § 6.8.03.]
5.25.040 Regulatory permit application.
A. An owner of an adult-oriented business is the only person eligible to obtain a regulatory permit for such business. No person under 18 years of age shall be eligible for a regulatory permit.
B. A regulatory permit application shall be submitted to the police chief. The application consists of the application fee and the following:
1. A city-provided application form containing:
a. The applicant’s name, mailing address and phone number;
b. The applicant’s status as a sole proprietor, general partner, controlling shareholder or designated representative of the proposed business;
c. The address of the proposed business;
d. A description of the proposed business;
e. The names and addresses of other adult-oriented businesses currently operated in California by the applicant or by a person affiliated with the applicant’s partnership or corporation; and
f. A list of adult entertainment-related permits that the applicant, or a person affiliated with the applicant’s partnership or corporation, currently holds or has had suspended or revoked by a governmental entity.
2. If the applicant is a general partner of a partnership that will own and operate the proposed business, the following shall be provided:
a. The partnership’s name and mailing address;
b. The names of the partners comprising the partnership; and
c. The partnership agreement.
3. If the applicant is a controlling shareholder or designated representative of a corporation that will own and operate the proposed business, the following shall be provided:
a. The corporation’s name and mailing address;
b. Evidence that the corporation is in good standing under California law;
c. The names and capacities of the corporation’s directors and officers; and
d. The name and address of the corporation’s registered agent for service of process.
4. If the proposed business will be conducted on leased premises, the following shall be provided: the name and address of the property owner.
5. Two passport-size color photographs, taken within 30 calendar days of the application date, that clearly show the applicant’s face.
6. The applicant’s fingerprints on a police chief-provided form.
7. A site plan depicting how the proposed business will comply with the design standards of this chapter and the off-street parking requirements of Chapter 18.45 CMC.
8. A radius map showing the following:
a. Any existing adult-oriented business located within 500 feet of the address of the proposed business. An adult-oriented business shall be considered “existing” if either:
i. It is currently operating;
ii. A regulatory permit has been issued for the business but it has not commenced operating; or
iii. A regulatory permit has been issued for the business but it is not currently operating due to a suspension of such permit.
b. Any existing residence, park, church or school located within 1,000 feet of the address of the proposed business. A residence, park, church or school shall be considered “existing” if either:
i. It is currently in use;
ii. A certificate of occupancy or building permit has been issued for it but such use has not commenced; or
iii. It is designated in an approved and unexpired tentative tract map.
The distances specified in this subsection shall be measured in a straight line, without regard for intervening structures, from any public entrance of the adult-oriented business to the property line of the property so used or designated at the time of submission of the application.
9. A statement signed by the applicant certifying under penalty of perjury that the information submitted in connection with the application is true and correct. [Ord. 233 § 3, 2005; Ord. 96-9.1 § 3; Code 1990 § 6.8.04.]
5.25.050 Approval or denial of regulatory permit.
A. The police chief shall, within 30 city business days of the filing of an application, approve and issue the regulatory permit if there are no grounds for denial; otherwise the permit shall be denied. Notice of the approval or denial of the permit shall be given to the applicant in writing. If the application is denied, the police chief shall include with the notice a statement of the reason(s) for the denial. The times set forth in this subsection shall not be extended except upon written consent of the applicant. If the police chief neither approves nor denies the regulatory permit within the allotted period, the application shall be deemed approved and the applicant may operate the adult-oriented business in accordance with this chapter. When an application is deemed approved, the police chief shall promptly issue a regulatory permit to the applicant.
B. The police chief may deny an application for a regulatory permit upon any of the following grounds:
1. The applicant is under 18 years of age.
2. Failure to complete the application.
3. Knowing submission of a misleading or fraudulent statement of material fact.
4. The applicant proposes to conduct more than one type of adult-oriented business within the establishment.
5. Failure to comply with the design standards of this chapter, the location standards of CMC 18.30.070 or with any other applicable provision of this code.
6. The applicant’s corporation, if the application is a controlling shareholder or designated representative of a corporation, is not in good standing under California law.
7. The applicant, or a person affiliated with the applicant’s partnership or corporation, has had a regulatory permit revoked by the city within one year prior to the date of the application. [Ord. 233 § 3, 2005; Code 1990 § 6.8.05.]
5.25.060 Development standards.
Adult-oriented businesses shall comply with the following development standards:
A. Sufficient sound-absorbing insulation shall be provided to ensure that noise generated inside the establishment shall not be audible outside of the establishment.
B. The interior shall be configured in such a manner that from a manager’s station there is an unobstructed view of every area to which patrons are permitted access, excluding restrooms. If the premises has multiple manager’s stations, then the interior shall be configured in such a manner that from at least one of the manager’s stations there is an unobstructed view of every area of the premises to which patrons are permitted access, excluding restrooms. The view required by this subsection must be a direct line of sight from the designated manager’s station.
C. Off-street parking areas and premises entries of the business shall be illuminated in compliance with CMC 18.120.110(B)(1).
D. Interior areas of the business shall be illuminated with a lighting system that provides at least the following lighting at any ground level point:
|
Area |
Foot-Candles |
|---|---|
|
Adult arcade |
10 |
|
Adult cabaret |
5 (excluding performances) |
|
Adult hotel/motel |
20 (public areas) |
|
Adult merchandise store |
20 |
|
Adult modeling studio |
20 |
|
Adult motion picture theater |
5 (excluding show times) |
E. Adult arcades shall comply with the following additional standard:
1. The walls or partitions between viewing rooms shall not contain holes such as would allow either:
a. Viewing from one room into another; or
b. Physical contact between the occupants of the rooms.
F. Adult cabarets shall comply with the following additional standards:
1. Each stage shall be elevated at least 18 inches above the level of the floor and separated at least 10 feet from the nearest patron area; provided, however, the stage shall be separated at least six feet from the nearest patron area if the business is regulated by the California Department of Alcoholic Beverage Control.
2. Separate gender dressing room facilities shall be provided for the exclusive use of erotic dancers. [Ord. 294 § 3, 2009; Ord. 233 § 3, 2005; Code 1990 § 6.8.06.]
5.25.070 Performance standards.
Adult-oriented businesses shall comply with the following performance standards:
A. No more than one type of adult-oriented business shall be conducted within the establishment.
B. The regulatory permit issued for the business shall be conspicuously posted so that it may be readily seen by persons entering the establishment.
C. Adult-oriented merchandise, specified sexual activities and specified anatomical areas shall not be visible from the exterior of the establishment.
D. Persons under the age of 18 years shall not be permitted within the establishment.
E. Security guards shall be employed in accordance with the following standards:
1. At least one security guard shall be on duty within the business at all times during open hours; provided, however, if the occupancy limit of the premises is greater than 35 persons, then an additional security guard shall be on duty for each additional 35 persons or portion thereof authorized by the occupancy limit.
2. Security guards shall be uniformed in such a manner so as to be readily identifiable as security guards by the public.
3. No security guard shall act as an admittance person, ticket person or sole occupant of a manager’s station.
F. The business shall not be operated between the hours of 12:00 a.m. and 8:00 a.m. on any day. This provision shall not apply to businesses that are regulated by the California Department of Alcoholic Beverage Control.
G. The exterior grounds of the premises shall be kept free of adult-oriented merchandise.
H. Acupressure, acupuncture, gambling, massage and tattooing shall not be conducted on the premises.
I. At least one employee shall be on duty and stationed at each manager’s station while a patron is in the establishment.
J. Adult arcades shall comply with the following additional standards:
1. No viewing room shall be occupied by more than one patron at a time.
2. The floors, seats, walls and other interior portions of viewing rooms shall be maintained clean and free from bodily secretions and waste.
K. Adult cabarets shall comply with the following additional standards:
1. No erotic dancer shall dance on the premises unless such person is in possession of a valid performer permit.
2. No erotic dancer shall dance on the premises in a state of nudity.
3. No erotic dancer shall dance on the premises except upon a stage that complies with the development standards of this chapter.
4. No erotic dancer shall dance on the premises closer than 10 feet to any patron; provided, however, no erotic dancer shall dance on the premises closer than six feet to any patron if the business is regulated by the California Department of Alcoholic Beverage Control.
5. No erotic dancer shall fondle or caress a patron and no patron shall fondle or caress an erotic dancer.
6. No patron shall directly pay or give any gratuity to an erotic dancer, and no erotic dancer shall solicit any gratuity from a patron.
7. The owner shall maintain on the business premises a register listing each erotic dancer who performs at the business and such person’s performer permit number. [Ord. 233 § 3, 2005; Code 1990 § 6.8.07.]
5.25.080 Nontransferability.
A. No person shall operate an adult-oriented business under the authority of a regulatory permit at any place other than the address stated in the application for such permit.
B. No regulatory permit shall be transferable. Any attempt to transfer a regulatory permit shall automatically render the permit void as of the date of such attempted transfer. [Ord. 233 § 3, 2005; Code 1990 § 6.8.08.]
5.25.090 Regulatory permit conditions.
The development standards and performance standards of this chapter are conditions of regulatory permit approvals. Notwithstanding any other provision of this code, failure to comply with any such standard shall not constitute grounds for criminal prosecution. [Ord. 233 § 3, 2005; Code 1990 § 6.8.09.]
5.25.100 Regulatory permit renewal.
A. Each regulatory permit shall be valid for two years from the date of issuance or renewal unless suspended or revoked.
B. An application for renewal of a regulatory permit shall be submitted to the police chief no sooner than 60 days prior to the expiration of such permit. The application consists of the renewal application fee and the items required for an initial application, except as follows:
1. No additional fingerprints will be required if the applicant’s fingerprints are already on file with the city.
2. No additional site plan will be required if the applicant declares that the business continues to operate in accordance with the site plan submitted in conjunction with the initial application.
3. A radius map shall not be required.
C. The police chief shall, within 30 city business days of the filing of a renewal application, renew the regulatory permit if there are no grounds for denial; otherwise the application shall be denied. Notice of the renewal or denial of the permit shall be given to the applicant in writing. If the application is denied, the police chief shall include with the notice a statement of the reasons for the denial. The times set forth in this subsection shall not be extended except upon written consent of the applicant.
D. The police chief may deny an application for renewal of a regulatory permit upon any of the grounds for denial of an initial application except that renewal shall not be denied on the basis of failure to comply with the location standards of CMC 18.30.070. The police chief also may deny an application for renewal of a regulatory permit if the business has failed to comply with the operating standards of this chapter at any time during the six months prior to the date of the application. [Ord. 233 § 3, 2005; Code 1990 § 6.8.10.]
5.25.110 Performer permit requirement.
It is unlawful for any person to work as an erotic dancer unless such person first obtains from the police chief, and continues to maintain in full force and effect, a performer permit. [Ord. 233 § 3, 2005; Code 1990 § 6.8.11.]
5.25.120 Performer permit application.
A. No person under 18 years of age shall be eligible for a performer permit.
B. A performer permit application shall be submitted to the police chief. The application consists of the application fee and the following:
1. A city-provided application form containing:
a. The applicant’s name, mailing address and phone number;
b. The applicant’s birth date;
c. Stage names and aliases used by the applicant; and
d. The name(s) and address(es) of the adult cabaret(s) at which the applicant intends to perform.
2. The applicant’s fingerprints on a city-provided form.
3. Two passport-size color photographs, taken within 30 calendar days of the application date, that clearly show the applicant’s face. [Ord. 233 § 3, 2005; Code 1990 § 6.8.12.]
5.25.130 Approval or denial of performer permit.
A. The police chief shall, within four city business days of the filing of an application, approve and issue the performer permit if there are no grounds for denial; otherwise the permit shall be denied. Notice of the approval or denial of the permit shall be given to the applicant in writing. If the application is denied, the police chief shall include with the notice a statement of the reasons for the denial. The times set forth in this subsection shall not be extended except upon written consent of the applicant. If the police chief neither approves nor denies the performer permit within the allotted period, the application shall be deemed approved and the applicant may work as an erotic dancer in accordance with this chapter. When an application is deemed approved, the police chief shall promptly issue a performer permit to the applicant.
B. The police chief may deny an application for a performer permit upon any of the following grounds:
1. The applicant is under 18 years of age.
2. Failure to complete the application.
3. Knowing submission of a misleading or fraudulent statement of material fact.
4. The applicant has had a performer permit revoked by the city within one year prior to the application date. [Ord. 233 § 3, 2005; Code 1990 § 6.8.13.]
5.25.140 Confidentiality of erotic dancer information.
Pursuant to Government Code Section 6254(f), information submitted in connection with a performer permit application is not a public record and shall not be disclosed by the city to the public. [Ord. 233 § 3, 2005; Code 1990 § 6.8.14.]
5.25.150 Presentation of performer permit.
Every erotic dancer shall have his or her performer permit available for inspection at all times during which such person is on the premises of the adult cabaret designated in the permit. This requirement may be satisfied by storing the performer permit in dressing room facilities designated for the exclusive use of erotic dancers. [Ord. 233 § 3, 2005; Code 1990 § 6.8.15.]
5.25.160 Disciplinary action.
A. Grounds for Discipline.
1. The police chief may suspend or revoke a regulatory permit if the permittee knowingly has done any of the following:
a. Submitted a misleading or fraudulent statement of material fact in the application.
b. Failed to comply with the development standards or performance standards of this chapter.
c. Failed to prevent criminal activity on the premises of the business.
d. Failed to prevent nuisance activity on the premises of the business.
e. Substantially enlarged the business without city approval.
f. Failed to abide by disciplinary action previously imposed by the police chief.
2. The police chief may suspend or revoke a performer permit if the permittee knowingly has done any of the following:
a. Submitted a misleading or fraudulent statement of material fact in the application.
b. Engaged in any of the activities described below while on the premises of an adult-oriented business:
i. Sexual activity with a patron.
ii. Unlawful solicitation of sexual activity with a patron.
iii. Transfer of unlawful narcotics.
iv. Conduct prohibited by this chapter.
c. Failed to abide by disciplinary action previously imposed by the police chief.
B. The police chief shall furnish the permittee written notice and an opportunity for a hearing prior to imposing any disciplinary action. Such notice shall be provided at least 10 days in advance and shall set forth the time and place of a hearing, and the ground(s) upon which the proposed disciplinary action is based.
C. Hearings shall be conducted in accordance with procedures established by the police chief. All parties involved shall have a right to: (1) offer testimonial, documentary and tangible evidence bearing on the issues; (2) be represented by counsel; and (3) 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.
D. Upon determining that there are grounds for disciplinary action, the police chief may take any of the following actions:
1. Issue a warning.
2. Impose such conditions on the regulatory permit or performer permit as deemed appropriate in order to protect the public health, safety and welfare.
3. Suspend the regulatory permit or performer permit for a specified period not to exceed 60 days.
4. Revoke the regulatory permit or performer permit.
E. The police chief shall issue written findings in conjunction with the imposition of any disciplinary action. [Ord. 233 § 3, 2005; Code 1990 § 6.8.16.]
5.25.170 Appeals.
Decisions of the police chief to issue, deny issuance, renew, deny renewal or impose disciplinary action in connection with a regulatory permit or a performer permit shall be subject to prompt administrative and judicial review in accordance with CMC 1.25.050. [Ord. 233 § 3, 2005; Code 1990 § 6.8.17.]
5.25.180 Fees.
Fees associated with regulatory permits and performer permits shall be set by city council resolution and shall not exceed the city’s reasonable administrative costs. [Ord. 233 § 3, 2005; Code 1990 § 6.8.18.]