Chapter 5.21 ADULT RELATED BUSINESSES

“Adult live entertainment theater” means any place, building, enclosure or structure, partially or entirely used for “live adult entertainment,” as defined in this section, performances or presentations characterized by an emphasis on depicting, exposing, displaying, or describing or relating to “specified sexual activities,” “specified anatomical areas” or men and/or women in a “state of nudity” or “state of partial nudity” for observation by patrons or customers therein. “Live adult entertainment” means any physical human body activity, whether performed or engaged in alone or with other persons, including but not limited to singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, in which the employees expose to public view “specified anatomical areas” for entertainment value or appear in a “state of nudity” or a “state of partial nudity” for any form of consideration.

“Adult motion picture” or “video arcade” means any business where coin, paper, note, or token-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to 4 or fewer persons per machine, at any one time, and where the predominant character or theme of the images so displayed is distinguished or characterized by its emphasis on matters depicting, or relating to “specified sexual activities,” “specified anatomical areas” or men and/or women in a “state of nudity” or “state of partial nudity.” For purposes of this chapter, motion pictures receiving up to an “NC17” rating from a generally recognized movie rating organization shall not be deemed to be included in the definition of an adult motion picture or video arcade.

“Adult motion picture theater” means any business, other than a hotel or motel which regularly provides closed-circuit viewing to each individual room as a secondary service to its hotel or motel customers, with the capacity for five or more persons where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions in which the predominant character and theme is distinguished or characterized by its emphasis on matters depicting or relating to “specified sexual activities,” “specified anatomical areas” or men and/or women in a “state of nudity” or “state of partial nudity” as defined in this section are regularly shown. This includes, without limitation, showing any such slides, motion pictures or videos by means of any video tape system which has a display, viewer, screen, or a television set. For purposes of this chapter, motion pictures receiving up to an “NC17” rating from a generally recognized movie rating organization shall not be deemed to be included in the definition of an adult motion picture theater.

“Adult related business” means any establishment, business or concern which, as a regular course or conduct of the business, offers or engages in the display of “specified anatomical areas,” “specified sexual activity,” or men and/or women in a “state of nudity,” or “state of partial nudity,” as defined in this section, by patrons, employees or anyone on the premises, and includes without limitation the following types of establishments:

1. Adult Related Book and Video Store. An “adult related book and video store” means an establishment, business or concern with more than twenty-five percent of its display area devoted to and offering for sale or rent, stock-in-trade consisting of adult related book and video products, or an establishment where twenty-five percent or more of the retail or wholesale value of merchandise displayed or offered for sale or rent consists of adult related book and video products. The term “adult related book and video products” means books, magazines, periodicals or other printed matter, paintings, sculptures, photographs, drawings, motion pictures, slides, films, tapes, video cassettes, records, DVD, CD-ROM, or other visual or audio representations or any material in digital format, which are characterized by an emphasis upon the depiction or description of “specified sexual activities” or “specified anatomical areas.”

2. Adult Related Sexual Device Store. An “adult related sexual device store” means an establishment, business or concern which sells, rents, displays, exhibits or offers for sale any of the following products:

a. Instruments, devices or paraphernalia which are designed or reasonably intended to be used in connection with “specified sexual activities”; or

b. Goods which are replicas of, or which simulate “specified anatomical areas,” or goods designed or reasonably intended to be placed on or in “specified anatomical areas” or reasonably intended to be used in conjunction with “specified sexual activities.” Such goods include, but are not limited to, devices that are physical representations of the human genital organs, and devices with non-sex related utility being marketed or offered for sale or rent in a manner promoting sexual or sadomasochistic uses, including, but not limited to, leather whips, straps, harnesses, restraints and ligatures.

The following items are expressly not included within the definitions in this section: (1) devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy; (2) candles and incense; (3) body oils, creams and lotions; (4) lingerie, stockings and undergarments; (5) massage devices that are not replicas of human genital organs; (6) health care or personal hygiene products; and (7) food products.

“City manager” means the city manager or his/her designee.

“Chief of police” means the chief of police or his/her designee.

“Employ,” “employee,” and “employment” describe and pertain to any person who performs any service on the premises of an adult entertainment establishment, on a full-time, part-time, or contract basis, regardless of whether the person is denominated an employee, independent contractor, agent, or otherwise. “Employee” does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.

“Establish” means and includes any of the following:

1. The opening or commencement of any adult related business as defined in this section;

2. The conversion of an existing business, whether or not an adult related business, to any adult related business as defined in this section;

3. The relocation of any adult related business; or

4. The addition of any of the “adult related businesses” as defined in this section to any other existing adult related business.

“Exceptions.” An “adult related business” shall not include:

1. Bona fide medical establishments operated by properly licensed and registered medical and psychological personnel with necessary medical or professional credentials for the treatment of patients.

2. Persons depicting “specified anatomical areas” in a modeling class operated:

a. By a college, junior college, or university supported entirely or partially by public revenue;

b. By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partially by public revenue; or

c. In a structure operated either as a profit or not-for-profit facility which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing, and where, in order to participate in a class a student must enroll at least three days in advance of the class.

“Figure modeling” or “modeling studio” means any business featuring a live person displaying “specified sexual activities,” “specified anatomical areas” or men and/or women in a “state of nudity” or “state of partial nudity” as defined in this section for compensation, whether monetary or any other form of consideration and for the purpose of being observed, sketched, photographed, painted, sculpted, or otherwise depicted. “Figure modeling” or a “modeling studio” does not include an artist studio or similar facility owned, operated or maintained by an individual artist or group of artists which is not open to the public and does not provide, permit or make available for viewing “specified sexual activities” on the premises.

“Nudity” or “state of nudity” means the showing of the human male or female genitals, pubic area, or anus, with less than a fully opaque fabric covering, the showing of the female breast with less than a fully opaque fabric covering of any part of the areola, or the showing of completely or opaquely covered (by fabric) male genitals in a discernibly turgid state.

“Operate” means to own, lease (as lessor or lessee), rent (as landlord or tenant or as agent for the purpose of representing a principal in the management, rental or operation of the property of such principal), manage, conduct, or direct an adult related business.

“Operator” means and includes the owner, manager or person in charge of any adult related business.

“Partial nudity” means a state of dress in which clothing covers no less than the genitals, pubic region, buttocks and nipple, areola and the lower portion below the lowest point of the areola of the female breast. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided that the areola is not exposed in whole or in part.

“Regularly features,” “regularly shown,” “regular basis” or “regularly” means a consistent or substantial course of conduct, such that the films or performances exhibited constitute a substantial portion of the films or performances offered as a part of the business.

“Religious institution” means any church, synagogue, mosque, temple, or building which is used primarily for religious worship, religious education incidental thereto and related religious activities.

“School” means any public or private educational facility primarily attended by minors, including large family day care homes, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, secondary schools, continuation schools, and special education schools, and includes school grounds.

“Specified anatomical area” includes the following:

1. Less than completely and opaquely covered human genitals, pubic region, anus, and/or the female breast below a point immediately above the top of the areola; and

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

“Specified sexual activity” includes the following:

1. Actual or simulated sexual intercourse, oral copulation and intercourse, oral-anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following sexually oriented acts or conduct: anilingus, sodomy, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, sapphism;

2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence;

3. Human or animal masturbation, sodomy, oral copulation, coitus, ejaculation;

4. Erotic or lewd touching of nude human genitals or pubic region;

5. Masochism, erotic or sexually oriented torture, beating or the infliction of pain;

6. Erotic or lewd touching, lewd fondling or other lewd contact with an animal by a human being; or

7. Human excretion, urination, menstruation, vaginal or anal irrigations.

“Zoning district” means the zoning designation on the city zoning map or the corresponding designation on the general plan land use map. (Ord. 1031 § 2 (part), 2005; Ord. 998 § 2 (part), 2003)

5.21.020 Permit required for operation of an adult related business.

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 the operation of an adult related business unless the person first obtains and continues to maintain in full force and effect a permit (referred to in this chapter as “adult related business permit”) from the city as required in this chapter. (Ord. 998 § 2 (part, 2003)

5.21.021 Application for permit for an adult related business.

A. Any person desiring to obtain an adult related business permit to operate an adult related business for which a permit is required pursuant to Section 5.21.020 shall apply to the chief of police on a form provided by the city clerk. Before submitting the application, a nonrefundable fee as established by resolution of the city council shall be paid to the finance department to defray, in part, the cost of the investigation and report required by this chapter. Upon payment, the finance department shall issue a receipt to the applicant showing that such permit application fee has been paid. The applicant shall provide the receipt or a copy thereof to the chief of police at the time of applying for a permit under this section.

The application to the chief of police shall be deemed complete when it contains the following information:

1. The full and true name and any other names of each person with an ownership interest of at least twenty percent in the adult related business and of each operator of the adult related business;

2. The present business addresses and telephone number and driver’s license number, if any, of the applicant and any operator;

3. The 2 previous business addresses immediately prior to the present address of the applicant and any operator;

4. Written proof provided in the form of a valid government issued photo identification card, issued within the United States that the applicant and any operator is at least 18 years of age;

5. The height, weight, color of eyes and hair of the applicant and any operator;

6. Five color portrait photographs at least 2 inches x 2 inches of the applicant and any operator;

7. The business license or tax certificate history of the applicant and any operator for any adult related business for the preceding 5 years, including whether the person while previously operating in this or another city, county or state under license, has had a license revoked or suspended, and the reason(s) therefor;

8. All criminal convictions of any person with an ownership interest and any operator of offenses specified in Section 5.21.027(A)(2) within 5 years of the date of application;

9. The name and address of the lessor of the real property on which the business is to be conducted, and a copy of the lease agreement or other documentation to establish that the owner and/or landlord of the premises consents to the establishment of an adult related business on the premises;

10. A diagram of the site and interior of the building as the business will be operated. The sketch or diagram need not be professionally prepared but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus 6 inches. The drawing of the site and interior of the building must be a configuration of the premises demonstrating it will comply with the requirements of this chapter;

11. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown on its articles of incorporation, together with the names and residence addresses of each of the officers, directors, and each stockholder holding an interest of 20 percent or more of the stock of the corporation. If the applicant is a partnership, the application shall set forth the name and the residence address of each of the partners holding an interest of 20 percent or more of the ownership of the company. If 1 or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant apply.

B. The chief of police shall take fingerprints of the applicant and any operator.

C. The application for a permit does not authorize conducting an adult related business until a permit has been granted. The issuance of a business operations tax certificate pursuant to this title shall not authorize conducting an adult related business until the necessary adult entertainment business permit required by Section 5.21.020 has been lawfully granted.

D. All personal information provided by an applicant shall be deemed confidential and not disclosed except as required by law.

E. The provisions of subsections (A)(4), (A)(5) and (C) of this section shall not apply to any corporate applicant; however, such information shall be provided for any operator. (Ord. 998 § 2 (part), 2003)

5.21.022 Land use permits and fees.

Adult related businesses shall comply with the terms, conditions, guidelines and regulations placed on any property in a planned development district or which is covered by a development agreement, including payment of fees applicable to such districts or agreements in the same manner as any other business seeking to locate on the property. (Ord. 998 § 2 (part), 2003)

5.21.023 Adult employee permits.

A. Except as otherwise provided in this chapter, no person shall be employed in an adult related business unless the person first obtains and continues in full force and effect an adult related business employee permit (referred to in this chapter as “adult employee permit”) and complies with all requirements of this chapter and other applicable laws.

B. The issuance of a business operations tax certificate pursuant to this title shall not authorize any person to perform any act for which an adult employee permit is required until the necessary permit has been lawfully approved. (Ord. 998 § 2 (part), 2003)

5.21.024 Application for adult employee permit.

A. An application for an adult employee permit shall be made to the chief of police on a form provided by the city clerk. Prior to submitting an application, a nonrefundable fee as established by resolution of the city council shall be paid to the finance department to defray, in part, the cost of investigation and report required by this chapter. The finance department shall issue a receipt to the applicant showing that a permit application fee has been paid. The applicant shall provide the receipt or a copy thereof to the chief of police at the time of applying for a permit under this section.

B. The application to the chief of police shall be deemed complete when it contains the following information:

1. Name, business address and telephone number of the applicant, and 2 previous business addresses immediately prior to the present address;

2. Driver’s license number, if any, of the applicant;

3. Applicant’s height, weight, color of eyes and hair;

4. Five color portrait photographs of the applicant at least 2 inches x 2 inches;

5. Written proof provided in the form of a valid government issued photo identification card, issued within the United States that the applicant is at least 18 years of age;

6. The name and address of the adult related business(es) where the applicant is to be employed or is to perform, if known, and the name of the owner(s) of the business(es);

7. The names and addresses of any adult related business(es) where the applicant previously engaged in or participated in live performances displaying specified anatomical areas or depicting or involving specified sexual activities or acted as a figure model;

8. Whether the applicant has been convicted of any offense specified in Section 5.21.027(A)(2) within 5 years of the date of application; and

9. The adult employee permit or license history of the applicant including whether applicant has had any adverse action taken against a permit or license held by the applicant, the reason therefor and the applicant’s business activity or occupation subsequent to the adverse action.

C. The chief of police shall take fingerprints and a photograph of the applicant and shall confirm the information submitted.

D. All personal information provided by an applicant shall be deemed confidential and not disclosed except as required by law. (Ord. 998 § 2 (part), 2003)

5.21.025 Verification of application.

Every application for a permit under this chapter shall be verified as provided in the California Code of Civil Procedure for the verification of pleadings. (Ord. 998 § 2 (part), 2003)

5.21.026 Investigation and recommendations for an adult related business permit.

A. Upon receiving an application for an adult related business permit, the chief of police shall:

1. Stamp the application as received on the date of receipt, and determine whether the application contains all the information required by Section 5.21.021. If the chief of police determines that the application is incomplete or has been completed improperly, the chief of police shall send written notice to the applicant at the address provided by the applicant of that fact within 10 calendar days and, on request of the applicant, grant the applicant an extension of time of 10 calendar days or less to complete the application properly. 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;

2. Within 10 calendar days of the date of filing of a complete application, refer the application to the community development department and the fire department; and

3. Within a reasonable period, not exceeding 35 calendar days after the filing of a complete application, the community development department and the fire department shall investigate the application and recommend approval or denial to the city manager. A failure to make a recommendation within the specified time period shall not be considered a recommendation for approval or denial.

B. The community development department and the fire department shall inspect the proposed premises and make separate recommendations to the city manager, within 35 calendar days after the filing of the completed application.

1. If the proposed location for an adult related business is not complete, the departments shall review the diagrams or plans submitted for the business and make a recommendation for approval based on the plans submitted.

2. No adult related business may operate until the city departments have inspected the completed adult related business and verified that the business has been constructed in conformance with the plans submitted and in conformance with this chapter.

C. Upon receiving an application for an adult employee permit, the chief of police shall review the application, conduct an investigation into the information provided and grant or deny approval of the application within 10 calendar days based on the criteria provided in this chapter for an adult employee permit. (Ord. 998 § 2 (part), 2003)

5.21.027 Issuance of permit for an adult related business.

A. The city manager shall act on the application for an adult related business permit within 45 calendar days after the date of filing a completed application, and shall grant or deny the permit by the end of the sixtieth day, unless the city manager finds:

1. That the applicant or the proposed operation fails to meet the requirements of this chapter;

2. That the applicant or any operator has been convicted of any of the following offenses or convicted of an offense outside of the state of California that would have constituted any of the following offenses if committed within the State of California: Sections 243.4, 261, 266a, 266b, 266d, 266e, 266f, 266g, 266h, 266i, 266j, 267, 288, 314.1, 314.2, 315, 316, 318, 653.22 or subdivisions (a), (b) or (d) of Section 647 of the California Penal Code; any offense requiring registration under provisions of either Section 290 of the California Penal Code or Section 11590 of the California Health and Safety Code; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing, giving away, of a controlled substance specified in Section 11054, 11055, 11056, 11057 or 11058 of the California Health and Safety Code, or as those sections may thereafter be amended or renumbered; provided, however, that the city manager shall issue a permit to any person convicted of any of the crimes described above if:

(a) the person is otherwise qualified for a permit; and

(b) the longer of the following time periods has passed:

(i) Five years from date of the conviction; or

(ii) Five years from release from confinement; or

(iii) Five years from formal release from probation period; or

(iv) Five years from formal release from parole.

3. That the applicant has knowingly made a material misrepresentation in the application;

4. That the applicant or any operator has had a permit for an adult related business denied, revoked or suspended for cause by this city or any other city or county within the last 5 years;

5. That the applicant or operator is not at least 18 years of age;

6. That the applicant has not paid the required fee to the finance department; or

7. That the diagrams or plans submitted by the applicant for the adult related business premise are not in conformance with the requirements of this chapter.

B. Not later than 5 calendar days after the date of the decision of the city manager, a notice of the decision shall be sent to the applicant, postage prepaid, at the address shown in the application and shall state whether the decision of the city manager was to grant or deny the permit.

C. If the city manager grants the permit or if the city manager neither grants nor denies the permit within 45 calendar days from the date a completed application is filed, the application shall be deemed granted. If the application is denied within 30 days of the filing of a completed application and the applicant files a timely notice of appeal, the applicant may operate the adult related business until the decision on the appeal is issued.

D. If, after receiving a completed application for an adult related business permit, a city official required under this chapter fails to inspect the premises of the adult related business in the time frame required under this chapter, the inspection requirement for which the city has failed to fulfill its duty of inspection shall be deemed satisfied. (Ord. 998 § 2 (part), 2003)

5.21.028 Issuance of adult employee permit.

A. Upon the filing of a completed adult employee permit application, the chief of police shall issue a temporary permit to the applicant, which temporary permit shall allow the employee to begin or continue working as an adult employee until the city makes a final decision to either grant or deny the application for an adult employee permit. The chief of police shall grant or deny the adult employee permit application within 10 calendar days after the filing of the application.

B. The chief of police shall grant the permit unless the chief of police finds:

1. That the applicant has been convicted of any of the following offenses or convicted of an offense outside of the state of California that would have constituted any of the following offenses if committed within the state of California: Sections 243.4, 261, 266a, 266b, 266d, 266e, 266f, 266g, 266h, 266i, 266j, 267, 288, 314.1, 314.2, 315, 316, 318, 653.22 or subdivisions (a), (b) or (d) of Section 647 of the California Penal Code; any offense requiring registration under provisions of either Section 290 of the California Penal Code or Section 11590 of the California Health and Safety Code; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing, giving away, of a controlled substance specified in Section 11054, 11055, 11056, 11057 or 11058 of the California Health and Safety Code, or as those sections may hereafter be amended or renumbered; provided, however, that the chief of police shall issue a permit to any person convicted of any of the crimes described above if the person is otherwise qualified for a permit; and the longer of the following time periods has passed:

a. Five years from date of the conviction;

b. Five years from release from confinement;

c. Five years from formal release from probation period; or

d. Five years from formal release from parole.

2. That the applicant has knowingly made a material misrepresentation in the application;

3. That the applicant has had a permit relating to an adult related business denied, revoked or suspended for cause by this city or any other city or county within the last 5 years. An applicant shall not be disqualified, however, by a permit denial, suspension, or revocation within the last 5 years if such denial, suspension, or revocation was the result of a criminal conviction for an offense listed in subsection (B)(1) and more than 5 years have passed from the date of conviction or release from confinement, probation, or parole related to the offense;

4. That the applicant is not at least 18 years of age; or

5. That the applicant has not paid the required fee to the finance department.

C. Notice of Decision. The decision on an applicant’s permit application shall be in writing and mailed to the applicant postage prepaid, within 5 calendar days after the decision of the chief of police. If a permit is denied for an adult employee, the applicant shall cease activities within 5 calendar days of mailing of the decision, unless the applicant timely appeals the decision denying the permit pursuant to Section 5.21.029. If a timely notice of appeal is filed, the applicant may continue as an adult employee until the decision on the appeal is issued. (Ord. 998 § 2 (part), 2003)

5.21.029 Appeal of decisions to deny business and employee permits.

A. Adult Related Business Permits. Any applicant aggrieved by the decision of the city manager relating to the issuance or denial of a permit for an adult related business may within 10 calendar days of the date identified in the decision of the city manager, appeal the decision to the city council by filing a written notice of appeal with the city clerk. If an appeal is not filed within 10 calendar days, the decision of the city manager shall be final.

B. Adult Employee Permits. Any applicant aggrieved by the decision of the chief of police relating to the issuance or denial of any adult employee permit may, within 10 calendar days of the date identified in the decision of the chief of police, appeal the decision to the city council by filing a written notice of appeal with the city clerk. Pending a decision on the appeal, an employee may continue as an adult employee pursuant to the temporary permit issued to that employee. If an appeal is not filed within 10 calendar days, the decision of the chief of police shall be final.

C. Hearing on Appeal. An appeal pursuant to subsection A or B of this section shall be set for hearing by the council at a date not later than 15 days after the filing of the notice of appeal or the next regularly scheduled city council meeting which can be noticed as required by law. The notice of hearing shall be mailed to the applicant at the address listed on the application at least 5 days prior to the date set for the hearing. The council may continue its hearing on the appeal from time to time; provided, however, that the decision on the appeal shall issue no later than 15 days after the original date set for hearing. The council shall hear all relevant evidence from competent persons relating to the granting or denial of the permit. An aggrieved applicant shall have the opportunity to present witnesses and to cross-examine adverse witnesses. The council may affirm or reject the decision of the city manager or chief of police. In its determination to affirm or revoke, the council shall apply the same criteria applicable to the decision of the city manager or the decision of the chief of police. The decision of the council to affirm, reject or modify the decision of the city manager or chief of police regarding any permit shall be final and subject to judicial review pursuant to California Code of Civil Procedure Section 1094.8.

The city council, in its sole discretion, may refer the appeal hearing to a hearing officer who shall hear all relevant evidence from competent persons relating to the granting or denial of the permit and issue a decision. If the matter is referred to a hearing officer for hearing, the hearing officer shall hold his/her hearing and issue his/her decision within 20 days of referral of the matter by the city council. The hearing officer shall make findings of fact and conclusions of law and issue a written decision on the appeal. The decision of the hearing officer shall be final. The hearing officer shall apply the same criteria applicable to the decision of the city manager or the decision of the chief of police.

D. The city council may set an appeal fee for appeals provided in this section. The appeal fee shall be set at a level designed to recoup the cost of the appeal, including but not limited to costs of the hearing officer and court reporter. (Ord. 998 § 2 (part), 2003)

5.21.030 Term and renewal of adult related business permits.

A. An adult related business permit shall expire 1 year from the date of issuance of the permit, unless sooner suspended or revoked.

B. A permit which has not been suspended or revoked may be renewed for the period specified in subsection A on written application to the chief of police. Applications for renewal shall be acted on as provided in this chapter for permit applications. Before submitting the renewal application a nonrefundable renewal fee as established by resolution of the city council shall be paid to the finance department to defray, in part, the cost of reviewing the renewal application. The application shall be filed at least 60 calendar days but not more than 90 calendar days prior to the expiration date of the current valid permit. When a timely and complete application for renewal is filed, the expiration of the permit shall be stayed until a decision on the renewal application is issued. When the application for renewal is filed less than 60 calendar days before the expiration date, the expiration of the permit shall not be stayed. (Ord. 998 § 2 (part), 2003)

5.21.031 Term and renewal of adult employee permits.

A. An adult employee permit shall expire 1 year from the date of issuance of the permit, unless sooner suspended or revoked.

B. A permit which has not been suspended or revoked may be renewed for the period specified in subsection A on written application to the chief of police. Applications for renewal shall be acted on as provided in this chapter for permit applications. Before submitting the renewal application a nonrefundable renewal fee as established by resolution of the city council shall be paid to the finance department to defray, in part, the cost of reviewing the renewal application. The application shall be filed at least 10 calendar days but not more than 60 calendar days prior to the expiration date of the current valid permit. When a timely and complete application for renewal is filed, the expiration of the permit shall be stayed until a decision on the renewal application is issued. When the application for renewal is filed less than 10 calendar days before the expiration date, the expiration of the permit shall not be stayed. (Ord. 998 § 2 (part), 2003)

5.21.032 Name and place of business—Change of location.

No person granted a permit for an adult related business shall operate the adult related business under any name or at any location not specified in the permit. (Ord. 998 § 2 (part), 2003)

5.21.033 Suspension, revocation or other action relating to adult related business permits and adult employee permits.

A. An adult related business permit and an adult employee permit may be suspended, revoked or other action may be taken against a permittee by the city manager in accordance with the procedures and standards of this section.

B. The chief of police shall provide information to the city manager regarding the grounds for suspension, revocation or other adverse action relating to a permit under this section prior to the suspension, revocation or other action of a permit. On determining that grounds for permit suspension, revocation or other action exists, the city manager shall furnish written notice of the proposed suspension, revocation or action to the permittee. The notice shall set forth the ground or grounds upon which the proposed action is based, the pertinent code sections, a brief statement of the factual matters in support thereof, the action to be taken and the effective date of the action. The notice shall be mailed, postage prepaid, addressed to the last known address of the permittee, or shall be delivered to the permittee personally.

C. An adult related business permit required pursuant to Section 5.21.020 may be suspended or revoked or be subjected to other adverse action, if any of the following causes arise from the acts or omissions of the permittee, or an operator of the adult related business:

1. The building, structure, equipment, or location used by the adult related business fails to comply with the requirements of this chapter.

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

3. The permittee or operator of an adult related business has knowingly allowed or permitted, or has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the adult related business:

a. Any action included in the definition of “specified sexual activities” in this chapter;

b. Use of the establishment as a place where unlawful solicitations for any sexual act, including but not limited to those within the definition of “specified sexual activities” in this chapter;

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. 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. The appearance of men or women in a “state of nudity” in any area of the adult related business premises by employees or patrons;

g. The appearance of an employee or patron in a state of partial nudity or displaying specified anatomical areas on the premises, except when performing on stage as provided for in this chapter;

h. Consuming of alcoholic beverages or possession, use or consumption of a controlled substance by employees or patrons anywhere on the premises of an adult related business premise or in the parking lot(s) owned, operated or maintained in connection with the adult related business premise where the owner or operator has knowledge of the consumption, possession or use or has failed to take reasonable efforts to prevent the consumption, possession or use;

i. Violation of any of the development and operational standards, rules or regulations governing the conduct or operation of an adult related business by an employee or patron with knowledge by an employee or manager where no immediate action is taken by the owner or operator to stop the offending action;

j. Employment of any person without an adult related business employee permit as required by this chapter; or

k. Any act by an employee in violation of the provisions of this chapter.

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

5. Conviction of any of the crimes specified in Section 5.21.027 by an owner or operator of an adult related business.

D. When the city manager finds and determines that there are grounds for action to be taken against a permittee, based upon the severity of the violation, the city manager shall impose 1 or more of the following:

1. A warning;

2. Conditions upon the permit reasonably related to address the violation(s);

3. Suspension of the permit for a specified period not to exceed 6 months; or

4. Revocation of the permit.

E. Notwithstanding anything to the contrary, for the purposes of this chapter, an act by an employee shall be imputed to the adult related business for the purpose of establishing a violation of this chapter, or for purposes of permit denial, suspension, or revocation if a permittee allowed, either knowingly or through negligent failure to supervise, a violation of this chapter to occur. (Ord. 998 § 2 (part), 2003)

5.21.034 Appeals of decisions to suspend or revoke permits.

A. Any permittee aggrieved by the decision of the city manager relating to the suspension, revocation or other action, except issuance of a warning, relating to an adult related business permit or an adult employee permit may, within 10 calendar days after the date of mailing of the decision to the permittee, appeal the decision to the city council by filing a written notice of appeal with the city clerk. Decisions of the city manager to issue a warning are not appealable. If an appeal is not filed within 10 calendar days, the decision of the city manager shall be final. If a timely notice of appeal is filed, the decision of the city manager shall be stayed until the decision on appeal is issued.

B. Hearing on Appeal. An appeal pursuant to subsection A or B of this section shall be set for hearing by the council at a date not later than 15 days after the filing of the notice of appeal or the next regularly scheduled city council meeting which can be noticed as required by law. The notice of hearing shall be mailed to the applicant at the address listed on the application at least 5 calendar days prior to the date set for the hearing. The council may continue its hearing on such appeal from time to time, provided, however, that the decision on the appeal shall issue no later than 15 calendar days after the original date set for hearing. The council shall hear all relevant evidence from competent persons relating to suspension, revocation of, or other discipline imposed upon, the permit. The decision of the council to affirm, reject or modify the decision of the city manager regarding any permit shall be final and subject to judicial review pursuant to California Code of Civil Procedure Section 1094.8. Where the city council finds that cause exists to suspend or revoke a permit, the city council’s authority to modify the decision of the city manager or chief of police includes reduction or increase of the suspension period, issuance of conditions on the permit reasonably related to the violation, and/or modifying a revocation to reflect a suspension provided the council finds that such modification will adequately address the issues which give rise to the suspension or revocation.

5.21.040 Register of adult related business employees.

A. The operator of an adult related business requiring an adult related business permit pursuant to Section 5.21.020 shall maintain a register on the premises of all employees of the business and their permit numbers.

B. The register required by subsection A shall include the current employees, as well as employees during the previous 6 months. The register shall remain confidential, except that it shall be available for inspection by law enforcement personnel or the county health officer for enforcement of the provisions of this chapter. The operator of the business shall provide the register immediately upon demand during regular business hours. (Ord. 998 § 2 (part), 2003)

5.21.041 Adult employee identification card.

The chief of police shall provide to each adult employee granted a permit or temporary permit, an identification card containing the name, photograph and permit number of the adult employee. The identification card shall remain confidential, except that an adult employee shall deposit his or her identification card with the on-site manager of an adult related business while the adult employee is on the premises. The on-site manager shall make the identification cards available for inspection by law enforcement personnel or the county health officer at all times while the adult related business is open for business. (Ord. 998 § 2 (part), 2003)

5.21.042 Employment of persons under the age of 18 years prohibited.

It shall be unlawful for the permittee or operator of an adult related business to employ, or permit to perform services or entertainment on the premises, any person who is under the age of 18 years. (Ord. 998 § 2 (part), 2003)

5.21.043 Display of permit.

Every adult related business granted a permit shall display the permit in a conspicuous place at or near the entrance of the adult related business at all times during business hours. (Ord. 998 § 2 (part), 2003)

5.21.044 Business operations tax.

Nothing in this title shall relieve the owner of any adult related business, or any adult employee, from paying the applicable business operations tax pursuant to this title. The issuance of a business operations tax certificate shall not authorize conducting an adult related business until the necessary regulatory permit required by Sections 5.21.020 or 5.21.023 has been lawfully granted. (Ord. 998 § 2 (part), 2003)

5.21.045 Transfer of adult related business permit.

Adult related business permits are not transferable. Upon sale or relocation of an adult related business, the permit therefor shall be void; provided, however, that upon the death or incapacity of the permittee, the establishment may continue in business for 90 days to allow for an orderly transfer of the permit pursuant to this section, provided, however, that the executor of the estate shall be required to renew the application and comply with all other requirements of this code. Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and upon such attempt the permit shall be deemed revoked. (Ord. 998 § 2 (part), 2003)

5.21.046 Employment of adult related business employees.

A. No permittee or operator of an adult related business shall employ any person unless that person possesses a valid adult employee permit under the provisions of this chapter. It shall be the responsibility of the permittee and the operator to ensure that each employee shall have first obtained a valid permit pursuant to this chapter and shall comply with all other requirements of this chapter.

B. No permittee or operator of an adult related business shall employ at an adult related business, any person who has been convicted of an offense specified in Section 5.21.027(A)(2) within the previous 5 years. (Ord. 998 § 2 (part), 2003)

5.21.047 Hours of operation.

An adult related business shall not be open for business between the hours of 11:00 p.m. and 8:00 a.m. An adult related business which has a license issued by the State Department of Alcohol Beverage Control may remain open as permitted by state law, but may not provide “live adult entertainment” as defined in this chapter after 11:00 p.m. (Ord. 998 § 2 (part), 2003)

5.21.048 Development and operational standards.

The following development and operational standards shall apply to adult related businesses, including those providing “live adult entertainment” and shall be in addition to those found in the zoning code:

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 Folsom.

B. No adult related business shall be operated in any manner that permits the observation of any material or activities depicting, displaying, describing or relating to specified sexual activities, specified anatomical areas, or men and/or women in a state of nudity or state of partial nudity as defined in this chapter, 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 in such a way as to permit the observation of men or women in a state of partial nudity or displaying sexually anatomical areas, and any exterior windows shall be covered with opaque covering at all times.

C. No person, including employees or patrons, may appear in a state of nudity nor shall a person wear clothing or other apparel which simulates the appearance of a state of nudity in an adult related business. No person shall appear or display specified anatomical areas or be in a state of partial nudity, except employees while in the employee’s dressing room or while an employee is performing on a stage as permitted in this chapter.

D. All off-street parking areas and the exterior areas of an adult related business shall be illuminated as specified in the zoning ordinance. The lighting shall be shown on the required sketch or diagram of the premises.

E. The building entrance to an adult related business shall be clearly and legibly posted with a notice indicating that persons under 18 years of age are precluded from entering the premises.

F. All interior areas of an adult related business shall be illuminated at a minimum of the following foot-candles as that term is defined in the zoning ordinance, minimally maintained and evenly distributed at ground level:


Area	Foot-Candles
Bookstores and other retail establishments	20
Theaters and cabarets	5 (except for the stage area during performances, at which times lighting may be as low as 1.0 foot-candles on the stage, but 5.0 at all other locations within the adult related business premises)
Motels/hotels	20 (in public areas)
Modeling studios	20

G. The adult related business shall provide and maintain separate restroom facilities for male patrons and female patrons and male employees and female employees. No person of the opposite sex may enter a male or female restroom, except an employee may enter to carry out duties of repair, maintenance or cleaning while the restroom is closed for use. The restroom shall be free of any adult material and shall not contain television monitors, or other motion picture or video projection, recording, or reproduction equipment.

H. No employee shall make physical contact with the person or the clothing of any patron and no patron shall make physical contact with the person or the clothing of any employee except for purposes of collecting money by hand to hand transfer, rendering emergency medical aid or handing something to the other in the ordinary course of business. It is the intent of this section to prohibit any touching of a sexual nature between patrons and employees.

I. Adult related businesses shall employ security guards in order to maintain public peace and safety and to assure compliance with the regulations relating to adult related businesses and based upon the following standards:

1. Adult related businesses featuring live entertainment or individual viewing booths at adult motion picture theaters or adult arcades shall provide at least 1 security guard inside the facility at all times while the business is open. If the occupancy of the adult related business featuring live entertainment or individual viewing booths at adult motion picture theaters or adult arcades is greater than 35 patrons, an additional security guard shall be on duty inside the building premise. Where an adult related business features “live adult entertainment,” as defined in this chapter, an additional security guard shall be present outside the facility to provide patrol in the parking lots at all times the business is open.

2. Security guards shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of this chapter. Security guards shall be uniformed in such a manner to be readily identified by the public as a security guard and shall be duly licensed as a security guard as required by applicable provisions of state law. No security person required pursuant to this section shall act as a door person, ticket seller, ticket taker, admittance person, entertainer or performer or shall be the sole occupant of the manager’s station while acting as a security guard. (Ord. 998 § 2 (part), 2003)

5.21.049 Adult related businesses providing live adult entertainment.

In addition to the development and operational standards provided in Section 5.21.048 and those found in the zoning code, the following additional requirements shall also apply to adult related businesses providing “live adult entertainment” as defined in this chapter:

A. No person shall perform “live adult entertainment” for patrons of an adult related business except upon a stage which is at least 18 inches above the level of the floor and which is separated by a distance of at least 10 feet from the nearest area occupied by patrons, and no patron shall be permitted within 10 feet of the stage while the stage is occupied by an adult employee. Fixed rail(s) at least 30 inches in height shall be maintained at the 10 foot perimeter point to establish the separation between adult employees and patrons as required by this subsection.

B. No owner or operator of an adult related business which provides “live adult entertainment” and for which an adult related business permit is required pursuant to this chapter shall permit any person to be on the premises of the adult related business in a “state of nudity.”

C. No owner or operator of an adult related business which provides live entertainment for which an adult related business permit is required by this chapter shall permit any person to appear in any public area of the premises in a state of dress less than a state of partial nudity, except when performing on a stage as permitted by this chapter.

D. No person, other than an employee of the adult related business who has been issued a valid adult employee permit, may provide “live adult entertainment” in an adult related business and the owner and/or operator and manager may not permit any person to appear in a state of dress less than a state of partial nudity in an adult related business.

E. The adult related business shall provide separate dressing rooms for adult employees which are exclusively dedicated to the adult employees’ use, and to which no patron shall be admitted. No patron shall be permitted in the employees’ dressing room. The adult related business shall provide a separate walkway between the dressing room facilities and the stage in a location which is not open to patrons, located at least 10 feet from patrons and which is at least 3 feet wide with a fixed solid barrier at least 30 inches in height separating the adult employees approaching or leaving the stage from all patrons.

F. The adult related business shall provide an entrance/exit from the adult related business premise for an employee that is separate from the entrance/exit used by patrons.

G. No employee shall make physical contact with the person or the clothing of any patron and no patron shall make physical contact with the person or the clothing of any employee except for purposes of collecting money by hand to hand transfer, rendering emergency medical aid or handing something to the other in the ordinary course of business. It is the intent of this section to prohibit any touching of a sexual nature between patrons and employees.

H. No employee shall solicit tips or other gratuities from any patron or other employees. No gratuity or tip may be given to an employee providing “live adult entertainment” except by placing the tip or gratuity into a non-human receptacle placed at the rail separating the employees from the patrons and at least 10 feet from the stage. Employees, other than those providing “live adult entertainment,” may accept gratuities or tips but only by means of hand to hand transfer or another method not involving physical contact between the patron and the employee. Any transfer of tips or gratuities between patrons and employees shall comply with this section’s prohibitions on physical contact between adult employees and patrons.

I. Manager Stations. All indoor areas of the adult related business providing “live adult entertainment” within which patrons are permitted, except restrooms, shall be open to view within a direct line of sight at all times by the management from a designated manager station. Manager stations shall not exceed 32 square feet in area. Manager stations may include video monitoring of the adult related business, but all areas of the business must be visible by a direct line of sight as described in this subsection. (Ord. 998 § 2 (part), 2003)

5.21.050 Management requirements.

There shall be present on the premises of an adult related business at all times while the business is open, a manager who shall be in charge of all of the activities on the premises and who shall be responsible to ensure compliance with all requirements set forth in this chapter. (Ord. 998 § 2 (part), 2003)

5.21.053 Persons under the age of 18 years prohibited on premises of adult related business.

A. It shall be unlawful for the permittee or operator of an adult related business to permit to enter, or remain within, the adult related business, any person who is under the age of 18 years.

B. It shall be unlawful for anyone under the age of 18 to enter, or remain within, the adult related business. (Ord. 998 § 2 (part), 2003)

5.21.054 Inspection.

To the extent authorized by law, an applicant or permittee shall permit representatives of the police department, health department, fire department, planning and inspections division, and other city and county departments or agencies to inspect the premises of an adult related business for the purpose of insuring compliance with this code and the development and operational standards applicable to adult related businesses, at any time it is open for business. A person who operates an adult related business or his or her agent or employee is in violation of the provisions of this section if he/she refuses to permit a lawful inspection of the premises at any time it is open for business. Nothing in this section shall permit or authorize warrantless searches of property on the premises, except as otherwise permitted by law. (Ord. 998 § 2 (part), 2003)

5.21.055 Conditions of adult related business permit.

The requirements, regulations and provisions set forth in this chapter shall be deemed conditions imposed upon every adult related business permit approved, and failure to comply with every such requirement shall be grounds for suspension, revocation or other action on the permit issued pursuant to these regulations. (Ord. 998 § 2 (part), 2003)

5.21.056 Violations.

It shall be unlawful to establish or operate an adult related business in violation of this chapter. It shall be unlawful for any owner, manager, patron or employee to knowingly violate any provision of this chapter. Any person who violates any provision of this section shall be guilty of a misdemeanor and/or an administrative violation punishable as follows:

A. A violation of this chapter shall be an administrative violation as defined in Section 1.08.020. In addition to enforcement as set forth in Chapters 1.08 through 1.10, inclusive, any violation of this chapter shall be punishable as a misdemeanor, which shall be punishable by a fine not to exceed $1,000.00 or by imprisonment in the county jail for not more than 6 months or by both such fine and imprisonment.

B. Notwithstanding the procedure for administrative violations provided in Chapters 1.08 through 1.10, no notice to correct as provided in Section 1.09.023 shall be required prior to issuance of a notice of administrative violation.

C. Each of the sanctions for administrative violations identified in Section 1.09.013 shall be available for enforcement of this chapter.

D. Based on the criteria for the imposition of administrative violations set forth in Section 1.09.014, a violation of a provision of this chapter committed by a patron or a non-management employee shall be deemed a Level A violation, as that term is described in Section 1.09.012. Based on the criteria for the imposition of administrative violations set forth in Section 1.09.014, a violation of a provision of this chapter committed by an owner or manager shall be deemed a Level B violation, as that term is described in Section 1.09.012. The range of monetary sanctions available for a violation of this chapter shall be as set forth in Section 1.09.012(A).

E. Any person who violates any provision of this chapter shall be guilty of a separate offense for each and every day which any such person commits, continues, permits, or causes a violation thereof, and shall be punished accordingly.

Nothing in this section shall be deemed or constituted to prevent the city from commencing any civil proceeding otherwise authorized by law for the declaration and/or abatement of a public nuisance. (Ord. 998 § 2 (part), 2003)