CHAPTER 10D
ADULT ENTERTAINMENT BUSINESSES
Article I. Purpose and Definitions.
10D.1 Purpose.
The purpose of this chapter is to prevent community-wide adverse secondary effects that can be generated by the unregulated operation of adult entertainment businesses. These adverse secondary effects include, but are not limited to: depreciation of property values; increased vacancy rates in residential and commercial areas; increased criminal activity; increased litter, noise, and vandalism; and interference with the enjoyment of residential property in the vicinity of such businesses.
10D.2 Definitions.
For the purpose of this chapter, unless it is plainly evident from the context that a different meaning is intended, the following definitions shall apply:
(a) "Adult entertainment business" shall mean any of the following:
(1) Adult arcade. An "adult arcade" is an establishment where, for any form of consideration, as a regular and substantial course of conduct 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, video cassettes, slides or other photographic reproductions that are characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
(2) Adult cabaret. An "adult cabaret" is an establishment that, for any form of consideration, as a regular and substantial course of conduct presents live performances that are characterized by an emphasis upon specified sexual activities or feature any semi-nude person.
(3) Adult motion picture theater. An "adult motion picture theater" is an establishment that, for any form of consideration, as a regular and substantial course of conduct offers to show films, computer-generated images, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
(4) Adult retail store. An "adult retail store" is an establishment that, for any form of consideration, as a regular and substantial course of conduct offers for sale, rent, or viewing either adult entertainment material, adult entertainment merchandise or both.
(5) Any business that, for any form of consideration, as a regular and substantial portion of conduct offers to its patrons products, merchandise, services or entertainment characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
(b) "Adult entertainment material" shall mean any audio tape, book, periodical, magazine, photograph, drawing, sculpture, motion-picture film, videotape recording, or other visual representation, characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
(c) "Adult entertainment merchandise" shall mean adult entertainment implements or paraphernalia, such as, but not limited to: dildos; auto sucks; vibrators; edible underwear; benwa balls; inflatable orifices; anatomical balloons with orifices; simulated vaginas and similar adult entertainment devices that are designed or marketed primarily for the stimulation of human genital organs or sadomasochistic activity.
(d) "Characterized by an emphasis upon" shall mean the dominant or essential theme of the object described by such phrase.
(e) "Director" shall mean the police chief of the City of Fairfield or the designee thereof.
(f) "Entertainer" shall mean a person who, for any form of consideration, performs at an adult entertainment business. Such persons shall constitute "entertainers" regardless of their legal relationship (e.g., employee, owner or independent contractor) with the adult entertainment business.
(g) "Hearing officer" shall mean the city manager of the City of Fairfield, or the designee thereof.
(h) "Owner" shall mean the following: (i) the sole proprietor of an adult entertainment business; (ii) any general partner of a partnership that owns and operates an adult entertainment business; (iii) the owner of a controlling interest in a corporation that owns and operates an adult entertainment business; and (iv) the person designated by the officers of a corporation to be the permit holder for an adult entertainment business owned and operated by the corporation.
(i) "Perform at an adult entertainment business" shall mean to engage in or participate in any live performance at an adult entertainment business that is characterized by an emphasis upon specified sexual activities or features any semi-nude person.
(j) "Permittee" shall mean the following: (i) for the purpose of Article II of this chapter, any person who has been issued an adult entertainment regulatory permit; (ii) for the purpose of Article III of this chapter, any person who has been issued an adult entertainer permit; and (iii) for the purpose of Articles IV-VI of this chapter, any person who has been issued an adult entertainment regulatory permit or an adult entertainer permit.
(k) "Person" shall mean any natural person, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.
(l) "Regular and substantial course of conduct" shall mean that any of the following conditions exist:
(1) At least thirty percent (30%) of the stock-in-trade is devoted to adult entertainment material, adult entertainment merchandise, or both; provided, however, that this criteria shall not apply to mail order businesses or wholesale businesses with no patrons on the premises.
(2) At least thirty percent (30%) of the total display area is devoted to adult entertainment material, adult entertainment merchandise, or both; provided, however, that this criteria shall not apply to mail order businesses or wholesale businesses with no patrons on the premises.
(3) The business presents any type of entertainment, live or otherwise, characterized by an emphasis upon specified sexual activities or featuring any nude or semi-nude person on any four (4) or more separate days within any thirty (30) day period.
(4) At least thirty percent (30%) of the gross receipts of the business are derived from the sale, trade, rental, display or presentation of services, products, materials or entertainment that is characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.
(m) "Semi-nude" shall mean a state of dress in which clothing covers no more than the genitals, pubic region, buttocks, areola and nipple of the female breast, as well as portions of the body covered by supporting straps or devices.
(n) "Specified anatomical areas" shall mean the following:
(1) Less than completely and opaquely covered human (i) genitals or pubic region; (ii) buttocks; and (iii) female breast below a point immediately above the top of the areola;
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered;
(3) Any device, costume or covering that simulates any of the body parts included in subparagraphs (1) or (2) above.
(o) "Specified sexual activities" shall mean the following, whether performed directly or indirectly through clothing or other covering:
(1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast;
(2) Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;
(3) Masturbation, actual or simulated;
(4) Excretory functions as part of, or in connection with, any of the other activities described in subparagraphs (1) through (3) of this paragraph.
(p) "Substantially enlarged" shall mean the increase in floor area occupied by an adult entertainment business by more than ten percent (10%) of its floor area as it existed at the time an adult entertainment regulatory permit was issued for the business.
Article II. Adult Entertainment Regulatory Permit.
10D.3 Permit required.
It is unlawful for any person to operate, engage in, conduct or carry on any adult entertainment business unless the owner of such business first obtains from the director, and continues to maintain in full force and effect, an adult entertainment regulatory permit for such business.
10D.4 Permit application.
(a) The owner of a proposed adult entertainment business shall be the only person eligible to obtain an adult entertainment business regulatory permit for such business. The owner shall not be eligible to obtain an adult entertainment business regulatory permit unless the owner is at least eighteen (18) years of age.
(b) The following shall be submitted to the director at the time of application for an adult entertainment business regulatory permit:
(1) A completed application form signed by: (i) the applicant; and (ii) either the record owner of the property or the lessor of the premises (if the business premises are leased to the applicant business) where the adult entertainment business is to be conducted.
(2) The applicant’s fingerprints on a form provided by the Fairfield Police Department. Any fees for the fingerprints shall be paid by the applicant.
(3) Two (2) color photographs, taken within six (6) months prior to the date of the application, that clearly show the applicant’s face. Any fees for the photographs shall be paid by the applicant.
(4) A written description of the proposed adult entertainment business and how it will satisfy the requirements of this chapter.
(5) A site plan depicting the building and unit proposed for the adult entertainment business. The site plan shall include a dimensional interior floor plan that depicts how the business will comply with the requirements of this chapter. The site plan shall also include a diagram of the off-street parking areas required by Section 25.26 of Article I of Chapter 25 of this Code.
(6) A statement signed by the applicant certifying under penalty of perjury that all of the information submitted in connection with the application is true and correct.
(7) A nonrefundable application fee in an amount set by resolution of the city council.
(c) If the director determines that the applicant has completed the application improperly, the director shall promptly notify the applicant of such fact and shall return the application unprocessed. On request of the applicant, the director shall grant the applicant an extension of time of ten (10) days to complete the application properly. The time period for granting or denying the requested permit shall be stayed during the period in which the applicant is granted an extension of time.
10D.5 Approval or denial of permit.
The director shall, within thirty (30) city business days of the filing of a complete application, approve and issue the adult entertainment regulatory permit if the requirements of this chapter have been met; otherwise the permit shall be denied. Notice of the approval or denial of the permit shall be given to the applicant in writing by first class mail, postage prepaid, deposited in the course of transmission with the United States Postal Service on the date of such decision. If the application is denied, the director shall attach to the notice a statement of the reasons for the denial. The time period set forth in this paragraph shall not be extended except upon the written consent of the applicant. Any interested person may appeal the decision of the director to the hearing officer in accordance with Article V of this chapter.
10D.6 Nontransferable.
(a) No person shall operate an adult entertainment business under the authority of an adult entertainment regulatory permit at any place other than the address of the adult entertainment business stated in the application for the permit.
(b) No adult entertainment regulatory permit issued pursuant to this chapter shall be transferable.
(c) Any attempt to transfer an adult entertainment regulatory permit is hereby declared invalid and the permit shall automatically become void effective the date of such attempted transfer.
(d) Nothing in this Section shall prevent the director from approving a second adult entertainment regulatory permit for a single location provided that the holder of the adult entertainment regulatory permit previously approved for such location consents in writing to the automatic expiration of such previously approved permit upon the effective date of such second permit.
10D.7 Location criteria.
Adult entertainment businesses shall comply with the location criteria of Section 25.20(a)(13)(A) of Article I of Chapter 25 of this Code.
10D.8 Design standards.
(a) No adult entertainment business shall be located in any temporary or portable structure.
(b) Trash dumpsters shall be enclosed by a locked screening enclosure so as not to be accessible to the public.
(c) No landscaping shall exceed thirty inches (30") in height, except trees with foliage not less than six feet (6’) above the ground; provided, however, that landscaping in place at an existing building shall not have to be removed.
(d) All off-street parking areas and premise entries of the adult entertainment business shall be illuminated from dusk to closing hours of operation with a lighting system that provides an average maintained horizontal illumination of one (1) footcandle of light on parking surfaces and walkways and a minimum maintained horizontal illumination of one-fourth (1/4) footcandle of light on parking surfaces. The lighting shall be shown on the site plan required by Section 10D.4.
(e) The premises within which the adult entertainment business is located shall provide sufficient sound-absorbing insulation so that noise generated inside the premises shall not be audible anywhere on adjacent property, public rights-of-way or within any separate unit within the same building.
(f) All indoor areas of the adult entertainment business within which patrons are permitted, except restrooms, shall be open to view by the management at all times.
(g) All indoor areas of the adult entertainment business shall be illuminated at a minimum of the following footcandles, minimally maintained and evenly distributed at ground level:
|
Area |
Footcandles |
|---|---|
|
Retail stores |
20 |
|
Cabarets |
5 (except during performances, at which times lighting shall be at least 1.25 foot-candles) |
|
Arcades |
10 |
(h) The adult entertainment 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 adult entertainment material and adult entertainment merchandise. Restrooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph shall not apply to an adult entertainment business that: (i) is not required to and does not provide restroom facilities to patrons or the general public; and (ii) deals exclusively with sale or rental of adult entertainment material or adult entertainment merchandise that is not used or consumed on the premises.
(i) Adult arcades shall comply with the following additional requirements:
(1) The interior of the premises shall be configured in such a manner that from a manager’s station there is an unobstructed view of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. If the premises has two (2) or more designated manager’s stations, then the interior shall be configured in such a manner that from at least one (1) of the manager’s stations there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose, excluding restrooms. The view required in this subparagraph must be direct line of sight from the designated manager’s station.
(2) At all times the view specified in subparagraph (1) shall remain unobstructed by doors, walls, merchandise, display racks, or other materials.
(3) The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times. The walls or partitions between viewing rooms or booths shall not contain holes between any two (2) such rooms or booths such as would allow either: (i) viewing from one (1) room or booth into another; or (ii) physical contact of any kind between the occupants of any two (2) such rooms or booths.
(4) Signs prohibiting loitering shall be posted in prominent places in and near viewing rooms and booths.
(5) No alteration in the configuration of a manager’s station shall be made without the written approval of the director.
(j) Adult cabarets shall comply with the following additional requirements:
(1) The interior of the premises shall be configured in such a manner that from a manager’s station there is an unobstructed view of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. If the premises has two (2) or more designated manager’s stations, then the interior shall be configured in such a manner that from at least one (1) of the manager’s stations there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose, excluding restrooms. The view required in this subparagraph must be direct line of sight from the designated manager’s station.
(2) At all times the view specified in subparagraph (1) shall remain unobstructed by doors, walls, merchandise, display racks, or other materials.
(3) No alteration in the configuration of a manager’s station shall be made without the written approval of the director.
(4) Separate dressing room facilities for entertainers, exclusively dedicated to the entertainers’ use, shall be provided.
(5) Access between the stage and the entertainers’ dressing room facilities, completely separated from the patrons, shall be provided. If such separate access is not physically feasible, a minimum three foot (3') wide walk aisle between the entertainers’ dressing room facilities and the stage shall be provided. Such walk aisle shall contain a railing, fence or other barrier separating the patrons and the entertainers. Such railing, fence or other barrier shall be at least thirty inches (30") in height and shall be sufficient to prevent any physical contact between patrons and entertainers.
10D.9 Performance standards.
(a) No adult entertainment business shall be operated in a manner that permits the observation, from public rights-of-way or locations outside the establishment, of either: (i) adult entertainment material; (ii) adult entertainment merchandise; (iii) specified sexual activities; (iv) specified anatomical areas; or (v) any nude or semi-nude person. This provision shall apply to any display, decoration, sign, show window or other opening.
(b) Exterior doors and windows of the adult entertainment business shall not be propped or kept open at any time while the business is open.
(c) No person under the age of eighteen (18) years shall be permitted within the adult entertainment business at any time.
(d) The adult entertainment business shall maintain a security system for parking surfaces serving the business in accordance with the following standards:
(1) Businesses served by on-site parking surfaces shall maintain a security system that visually monitors and records such parking surfaces.
(2) Businesses served by off-site parking surfaces shall maintain either (i) a security system that visually monitors and records such parking surfaces or (ii) at least one (1) security guard charged exclusively with monitoring such parking surfaces at all times while the business is open; provided, however, that this subparagraph shall not apply to any business served by off-site parking surfaces that are used exclusively for valet parking.
(e) Security guards shall be employed in accordance with the following standards:
(1) One (1) security guard shall be on duty at all times while the business is open; provided, however, that an additional security guard shall be on duty if the occupancy limit of the premises is greater than fifty (50) persons.
(2) The security guard(s) shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public.
(3) The security guard(s) shall be charged with preventing violations of law, enforcing patron compliance with the requirements of this chapter, and with notifying the Fairfield Police Department of any violations of law observed.
(4) No security guard required pursuant to this paragraph 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.
(f) No adult entertainment business shall operate between the hours of two (2) a.m. and eight (8) a.m. on any day.
(g) The exterior grounds of the premises of the adult entertainment business shall be free from all adult entertainment material and adult entertainment merchandise.
(h) Adult arcades shall comply with the following additional requirements:
(1) No viewing room or video booth may be occupied by more than one (1) person at any one time.
(2) At least one (1) employee shall be on-duty and stationed at each manager’s station at all times that a patron is present inside the premises.
(3) Customers, patrons or visitors shall not be allowed to loiter in either: (i) the vicinity of viewing rooms or booths; or (ii) the common area of the business.
(4) The floors, seats, walls and other interior portions of viewing rooms and booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen or saliva in any viewing rooms or booths shall be evidence of improper maintenance and inadequate sanitary controls.
(i) Adult cabarets shall comply with the following additional requirements:
(1) No entertainer shall perform except upon a stage that is both: (i) at least eighteen inches (18") above the level of the floor; and (ii) separated by a distance of at least six feet (6') from the nearest area occupied by patrons.
(2) No patron shall be permitted within six feet (6') of the stage while the stage is occupied by an entertainer nor shall a patron be permitted within six feet (6') of any person dancing for any form of consideration.
(3) No entertainer shall have physical contact with a patron before, during or after performances. This subparagraph shall only apply to physical contact on the premises of the business.
(4) No owner or other person with managerial control over the adult entertainment business shall permit any person on the premises to engage in a live performance characterized by the exposure of specified anatomical areas.
(5) No patron shall have physical contact with an entertainer before, during or after performances. This subparagraph shall only apply to physical contact on the premises of the business.
(6) No patron shall directly pay or give any gratuity to an entertainer in conjunction with a performance. For purpose of this provision, "directly pay or give" shall mean the placement of a gratuity by a patron on any portion of an entertainer’s person or clothing.
(7) No entertainer shall solicit any gratuity from a patron.
10D.10 Employment of entertainers without permits.
No permittee, owner, operator or other person in charge of an adult entertainment business shall allow any person to perform at the business unless such person is in possession of a valid adult entertainer permit as required by Article III of this chapter.
10D.11 Register and permit number of entertainers.
(a) Every owner of an adult cabaret and every owner of an adult theater shall maintain on the premises of such business a register of all entertainers who perform at the business. Such register shall list each entertainer’s legal name, stage name(s), and adult entertainer permit number.
(b) Upon commencement of the business, and on an annual basis thereafter, every owner of an adult cabaret and every owner of an adult theater shall file with the director a copy of the register of entertainers who perform at the business. Such filing shall be accompanied by a statement, signed by the owner, that all of the information in the register is true and correct.
10D.12 Display of permit.
Every adult entertainment business shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such business. The permit shall be displayed in a conspicuous place so that it may be readily seen by all persons entering the adult entertainment business.
10D.13 Inspections.
The owner, operator, or other person in charge of an adult entertainment business shall allow city officers and their authorized representatives to conduct unscheduled inspections of the premises of the adult entertainment business for the purpose of ensuring compliance with the law at any time the adult entertainment business is open for business or is occupied.
10D.14 Term of permit.
An adult entertainment regulatory permit issued under this chapter shall be valid for twenty-four (24) months from the date of issuance unless suspended or revoked.
10D.15 Renewal.
A holder of an adult entertainment regulatory permit issued under this chapter shall submit an application for renewal no later than thirty (30) calendar days prior to the expiration of the permit issued for such establishment. The renewal application shall be submitted together with a nonrefundable renewal fee in an amount established by resolution of the city council. Applications for renewal of an adult entertainment regulatory permit shall be processed in accordance with the procedures governing initial applications.
10D.16 Conditions.
The requirements of this article shall be deemed conditions of adult entertainment regulatory permit approvals. Failure to comply with every such requirement shall be grounds for suspension or revocation of an adult entertainment regulatory permit.
Article III. Adult Entertainer Permit.
10D.17 Permit required.
It is unlawful for any person to perform at an adult entertainment business unless such person first obtains from the director, and continues to maintain in full force and effect, an adult entertainer permit.
10D.18 Permit application.
(a) No person less than eighteen (18) years of age shall be eligible for an adult entertainer permit.
(b) The following shall be submitted to the director at the time of application for an adult entertainer permit:
(1) A completed application form signed by: (i) the applicant; and (ii) the owner of the adult entertainment business in which the applicant intends to perform.
(2) The applicant’s legal name and any other names (including stage names and aliases) used by the applicant.
(3) Age, date and place of birth.
(4) Height, weight, hair and eye color.
(5) Present residence address and telephone number.
(6) 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 any of the aforesaid offenses if committed outside the State of California.
(7) 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.
(8) State driver’s license or identification number.
(9) Satisfactory written evidence that the applicant is at least eighteen (18) years of age.
(10) The applicant’s fingerprints on a form provided by the Fairfield Police Department. Any fees for the fingerprints shall be paid by the applicant.
(11) Two (2) color photographs, taken within six (6) months prior to the date of the application, that clearly show the applicant’s face. Any fees for the photographs shall be paid by the applicant.
(12) A nonrefundable application fee in an amount set by resolution of the City Council.
(c) If the director determines that the applicant has completed the application improperly, the director shall promptly notify the applicant of such fact and shall return the application unprocessed. On request of the applicant, the director shall grant the applicant an extension of time of ten (10) days to complete the application properly. The time period for granting or denying the requested permit shall be stayed during the period in which the applicant is granted an extension of time.
10D.19 Grounds for denial.
The director shall deny an application for an adult entertainer permit for any of the following causes:
(a) The applicant has knowingly made any false, misleading, or fraudulent statement of material fact in the application or in any report or document required to be filed with the application.
(b) The applicant is under eighteen (18) years of age.
(c) The adult entertainer permit is to be used for performing in a business for which an adult entertainment regulatory permit or a zone clearance has not been obtained.
10D.20 Approval or denial of permit.
The director shall, within four (4) city business days of the filing of a compete application, approve and issue the adult entertainer 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 by first class mail, postage prepaid, deposited in the course of transmission with the United States Postal Service on the date of such decision. If the application is denied, the director shall attach to the notice a statement of the reasons for the denial. The time period set forth in this paragraph shall not be extended except upon the written consent of the applicant. Any interested person may appeal the decision of the director to the hearing officer in accordance with Article V of this chapter.
10D.21 Nontransferable.
(a) No adult entertainer permit shall authorize the permittee to perform at an adult entertainment business other than the business stated in the application for the permit.
(b) No adult entertainer permit issued pursuant to this chapter shall be transferable.
(c) Any attempt to transfer an adult entertainer permit is hereby declared invalid and the permit shall automatically become void effective the date of such attempted transfer.
10D.22 Display of permit.
Every entertainer shall have his or her adult entertainer permit available for inspection at all times during which such entertainer is on the premises of the adult entertainment business at which the entertainer performs.
10D.23 Term of permit.
An adult entertainer permit issued under this chapter shall be valid for twelve (12) months from the date of issuance unless suspended or revoked.
10D.24 Renewal.
An entertainer permitted under this chapter shall submit an application for renewal no later than thirty (30) calendar days prior to the expiration of the permit issued for such entertainer. The renewal application shall be submitted together with a nonrefundable renewal fee in an amount established by resolution of the city council. Applications for renewal of an adult entertainer permit shall be processed in accordance with the procedures governing initial applications.
Article IV. Suspension and Revocation of Permits.
10D.25 Grounds for suspension or revocation.
(a) The director shall suspend or revoke an adult entertainment regulatory permit for the following causes:
(1) The permittee has knowingly made any false, misleading or fraudulent statement of material fact in the application, or in any report or record required to be filed with the city.
(2) The permittee, or an employee, owner, agent, partner, director, stockholder, or manager of the adult entertainment business has knowingly failed to comply with any of the requirements of this chapter.
(3) The permittee, or an employee, owner, agent, partner, director, stockholder, or manager of the adult entertainment business has knowingly allowed or permitted the occurrence of criminal activity on the premises of the adult entertainment business.
(4) The permittee, or an employee, owner, agent, partner, director, stockholder, or manager of the adult entertainment business has committed a misdemeanor or felony in the conduct of the business.
(5) The permittee, or an employee, owner, agent, partner, director, stockholder, or manager of the adult entertainment business has failed to abide by any disciplinary action previously imposed by an authorized city official.
(6) The approved use has been substantially enlarged without city approval.
(b) The director shall suspend or revoke an adult entertainer permit for the following causes:
(1) The permittee has knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit, or in any report or record required to be filed with the city.
(2) The permittee has engaged in one of the activities described below while on the premises of an adult entertainment business:
(a) Unlawful sexual intercourse, sodomy, oral copulation, or masturbation.
(b) Unlawful solicitation of sexual intercourse, sodomy, oral copulation, or masturbation.
(c) Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code.
(d) 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) An 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 chapter.
(3) Failure to abide by disciplinary action previously imposed by an authorized city official.
10D.26 Procedure for suspension or revocation.
(a) On determining that grounds for permit revocation exist, the director 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(s) upon which the proposed suspension or revocation is based. The notice shall be mailed, postage prepaid, addressed to the last known address of the permittee, or shall be personally delivered to the permittee, at least ten (10) days prior to the hearing date.
(b) Hearings shall be conducted in accordance with procedures established by the director. 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.
(c) After holding the hearing in accordance with this section, upon determining that there are sufficient grounds for disciplinary action, the director shall impose one of the following penalties:
(1) A warning;
(2) Suspension of the permit for a specified period not to exceed six (6) months;
(3) Revocation of the permit.
The director may, in conjunction with the issuance of a warning or the suspension of a permit, order the permittee to take appropriate corrective action.
Article V. Appeals.
10D.27 Appeal application.
(a) Any interested person may appeal the director’s issuance, denial of issuance, renewal, denial of renewal, suspension or revocation of an adult entertainment regulatory permit or adult entertainer permit to the hearing officer in accordance with the provisions of this section.
(b) A written appeal petition must be filed with the city clerk within ten (10) calendar days after the decision of the director; provided, however, that if the ten (10) days expires on a date that city hall is not open for business, then the appeal period shall be extended to the next city business day. Failure to file a timely appeal petition deprives the hearing officer of jurisdiction to hear the appeal.
(c) The appeal petition must indicate in what way the appellant contends the director’s decision was incorrect or must provide extenuating circumstances that the appellant contends would justify reversal or modification of the director’s decision.
10D.28 Director’s decision stayed.
The effectiveness of any decision of the director to suspend or revoke an adult entertainment regulatory permit or adult entertainment regulatory permit shall be stayed during: (1) the appeal period set forth in this article; and (2) the pendency of any appeal.
10D.29 Notice of hearing.
The hearing officer shall consider a timely-filed appeal no later than thirty (30) city business days following the submission of the appeal, unless the appellant consents in writing to an extension. At least ten (10) calendar days prior to such hearing, written notice thereof shall be mailed to the appellant by U.S. with a proof of service attached.
10D.30 Hearing officer consideration.
Hearings shall be conducted in accordance with procedures established by the hearing officer. 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 paragraph may be continued for a reasonable time for the convenience of a party or a witness.
10D.31 Burden of proof.
Unless otherwise specifically provided by law, in any hearing under this article the burden is on the appellant to prove that the determination of the director that is being appealed is unreasonable and an abuse of discretion.
10D.32 Hearing officer decision.
The hearing officer shall, within forty-five (45) city business days from the filing of the appeal, render a written decision supported by findings. The time period set forth in this paragraph shall not be extended except upon written consent of the appellant. The decision of the hearing officer shall be final. On the date of the hearing officer’s decision, notice of the decision and a copy thereof shall be mailed by first-class mail, postage prepaid, to the appellant. Such notice shall contain the substance of the following statement: "You are hereby notified that the time within which judicial review of this decision may be sought is governed by California Code of Civil Procedure Section 1094.6."
10D.33 Judicial review.
The appellant may seek judicial review of the hearing officer’s decision in accordance with California Code of Civil Procedure Section 1094.5 et seq or as otherwise permitted by law.
Article VI. Miscellaneous.
10D.34 Existing adult businesses.
Any adult entertainment business legally in business prior to the effective date of this chapter may continued in operation without compliance with this chapter provided that such business is not substantially enlarged.
10D.35 Regulations nonexclusive.
The provisions of this chapter regulating adult entertainment businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other applicable provisions of this Code, including Section 25.20.1, or any other applicable law.
10D.36 Conflicts.
If the provisions of this chapter conflict with or contravene any other provisions of this Code, the provisions of this chapter shall prevail as to all matters and questions arising out of the subject matter of this chapter. (Ord. No. 98-22, § 2.)