Chapter 5.10 ADULT-ORIENTED BUSINESSES

It is the intent of this chapter to prevent community-wide adverse economic impacts, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of adult-oriented businesses in close proximity to each other or proximity to other incompatible uses such as schools, parks, churches, and residentially zoned districts or uses. The city council finds that it has been demonstrated in various communities that the concentration of adult-oriented businesses causes an increase in the number of transients in the area, an increase in crime, and in addition to the effects described above, can cause other businesses, consumers and residents to move or trade elsewhere. It is, therefore, the purpose of this chapter to establish reasonable and uniform regulations to prevent the concentration of adult-oriented businesses or their close proximity to incompatible uses, while permitting the location of adult-oriented businesses in certain areas. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10100.)

5.10.020 Definitions.

For the purposes of this chapter, unless it is plainly evident from the context that a different meaning is intended, the terms used in this chapter are defined as provided in Section 18.25.030 and as follows:

(a) “Adult-oriented business operator” (hereinafter “operator”) means a person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of an adult-oriented business or the conduct or activities occurring on the premises thereof.

(b) “Applicant” means a person who is required to file an application for a permit under this chapter, including an individual owner, managing partner, officer of a corporation, or any other operator, manager, employee, or agent of an adult-oriented business.

(c) “Bar” means any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises.

(d) “Figure model” means any person who, for pecuniary compensation, consideration, hire or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted.

(e) “Nudity” or “a state of nudity” means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernible turgid state.

(f) “Operate an adult-oriented business” means the supervising, managing, inspecting, directing, organizing, controlling or in any way being responsible for or in charge of the conduct of activities of an adult-oriented business or activities within an adult-oriented business.

(g) “Permittee” means the person to whom an adult-oriented business permit is issued.

(h) “Person” means any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

(i) “Police chief” means the police chief of the city of Fremont or the authorized representatives thereof. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10105.)

5.10.030 Permits required.

(a) It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the city, the operation of an adult-oriented business as defined in Section 18.25.070(b), unless the person first obtains and continues to maintain in full force and effect a permit from the city as required in this chapter (adult-oriented business regulatory permit).

(b) It shall be unlawful for any persons to engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in an adult-oriented business unless the person first obtains and continues in full force and effect a permit from the city as required in this chapter (adult-oriented business performer permit). (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10110.)

5.10.040 Adult-oriented business regulatory permit required.

Every person who proposes to maintain, operate or conduct an adult-oriented business as defined in Section 18.25.070(b) in the city shall file an application with the police chief upon a form provided by the city and shall pay a filing fee, as established by resolution adopted by the city council from time to time, which shall not be refundable. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10115.)

5.10.050 Applications.

(a) Adult-oriented business regulatory permits are nontransferable, except in accordance with Section 5.10.080. All applications shall include the following information:

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

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

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

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

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

(d) A description of the type(s) of adult-oriented business(es) for which the permit is requested and the proposed address where the adult-oriented business will operate, plus the names and addresses of the owners and lessors of the adult-oriented business site.

(e) The address to which notice of action on the application is to be mailed.

(f) The names of all employees, independent contractors, and other persons who will perform at the adult-oriented business, who are required by Section 5.10.090 to obtain an adult-oriented business performer license.

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

(h) A certificate and straight-line drawing prepared within 30 days prior to application depicting the building and the portion thereof to be occupied by the adult-oriented business, and: (1) the property line of any other adult-oriented business within 600 feet of the primary entrance of the adult-oriented business for which a permit is requested; and (2) the property lines of any church, school, park, residential zone or use within 300 feet of the primary entrance of the adult-oriented business.

(i) A diagram of the off-street parking areas and premises entries of the adult-oriented business showing the location of the lighting system required by Section 5.10.140(c).

(j) If the police chief determines that the applicant has completed the application improperly, the police chief shall notify the applicant of such fact within five days of receiving the application and, on request of the applicant, grant the applicant an extension of time of at least five days 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.

(k) The fact that an applicant possesses other types of state or city permits or licenses does not exempt the applicant from the requirement of obtaining an adult-oriented business regulatory permit. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10120.)

5.10.060 Investigation and action on application.

(a) Upon receipt of a completed application and payment of the application and permit fees, the police chief or his/her designee shall immediately stamp the application as received and promptly investigate the information contained in the application to determine whether the applicant shall be issued an adult-oriented business regulatory permit.

(b) Within 30 days of receipt of the completed application, plus any applicable extensions, the police chief shall complete the investigation, grant or deny the application in accordance with the provisions of this section, and so notify the applicant as follows:

(1) The police chief shall write or stamp “granted” or “denied” on the application and date and sign such notation.

(2) If the application is denied, the police chief shall attach to the application a statement of the reasons for denial.

(3) If the application is granted, the police chief shall attach to the application an adult-oriented business regulatory permit.

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

(c) The police chief shall grant the application and issue the adult-oriented business regulatory permit upon findings that the proposed business meets the locational criteria of Section 18.190.010; and that the applicant has met all of the development and performance standards and requirements of Section 5.10.140, unless the application is denied for one or more of the reasons set forth in Section 5.10.070. The permittee shall post the permit conspicuously in the adult-oriented business premises.

(d) If the police chief grants the application or if the police chief neither grants nor denies the application within 30 days, after it is stamped as received (except as provided in Section 5.10.050(j)), the applicant may begin operating the adult-oriented business for which the permit was sought, subject to strict compliance with the development and performance standards and requirements of Section 5.10.140. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10125.)

5.10.070 Permit denial.

(a) The police chief shall deny the application for any of the following reasons:

(1) The building, structure, equipment, or location used by the business for which an adult-oriented business regulatory permit is required does not comply with the requirements and standards of the health, zoning, fire and safety laws of the city and the state, or with the locational or development and performance standards and requirements of these regulations.

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

(3) An applicant is under 18 years of age.

(4) The required application fee has not been paid.

(5) The adult-oriented business does not comply with the zoning ordinance locational standards of Section 18.190.010.

(b) Each adult-oriented business regulatory permit shall expire one year from the date of issuance, and may be renewed only by filing with the police chief a written request for renewal, accompanied by the annual permit fee and a copy of the permit to be renewed. The request for renewal shall be made at least 30 days before the expiration date of the permit. When made less than 30 days before the expiration date, the expiration of the permit will not be stayed. Applications for renewal shall be acted on as provided herein for action upon applications for permits. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10130.)

5.10.080 Transfer of adult-oriented business regulatory permits.

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

(b) A permittee shall not transfer ownership or control of an adult-oriented business or transfer an adult-oriented business regulatory permit to another person unless and until the transferee obtains an amendment to the permit from the police chief stating that the transferee is now the permittee. An amendment may be obtained only if the transferee files an application with the police chief in accordance with Sections 5.10.050 and 5.10.060, accompanies the application with a transfer fee in an amount set by resolution of the city council, and the police chief determines in accordance with Section 5.10.060 that the transferee would be entitled to the issuance of an original permit.

(d) Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and the permit shall be deemed revoked. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10135.)

5.10.090 Adult-oriented business performer permit.

(a) No person shall engage in or participate in any live performance depicting “specified anatomical areas” or involving “specified sexual activities” (as defined in Section 18.25.070) in an adult-oriented business without a valid adult-oriented business performer permit issued by the city. All persons who have been issued an adult-oriented business regulatory permit shall promptly supplement the information provided as part of the application for the permit required by Section 5.10.030, with the names of all performers required to obtain an adult-oriented business performer permit, within 30 days of any change in the information originally submitted. Failure to submit such changes shall be grounds for suspension of the adult-oriented business regulatory permit.

(b) The police chief shall grant, deny and renew adult business employee permits.

(c) The application for a permit shall be made on a form provided by the police chief. An original and two copies of the completed and sworn permit application shall be filed with the police chief.

(d) The completed application shall contain the following information and be accompanied by the following documents:

(1) The applicant’s legal name and any other names (including “stage names” and aliases) used by the applicant;

(2) Age, date and place of birth;

(3) Height, weight, hair and eye color;

(4) Present residence address and telephone number;

(5) Whether the applicant has ever been convicted of:

(A) Any of the offenses (or the final disposition after any plea bargain of the original charge) set forth in Cal. Penal Code Title 9, Chapter 7.5, Sections 309, 315, 316, 318, 266a, 266b, 266c, 266e, 266g, 266h, 266i, 647(a), 647(b), 647(d) and 647.6, as those sections now exist or may hereafter be amended or renumbered.

(B) The equivalent of the aforesaid offenses outside the state;

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

(7) State driver’s license or identification number;

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

(9) The applicant’s fingerprints on a form provided by the police department, and a color photograph clearly showing the applicant’s face. Any fees for the photographs and fingerprints shall be paid by the applicant;

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

(e) The completed application shall be accompanied by a nonrefundable application fee. The amount of the fee shall be set by resolution of the city council.

(f) Upon receipt of an application and payment of the application fees, the police chief shall immediately stamp the application as received and promptly investigate the application.

(g) If the police chief determines that the applicant has completed the application improperly, the police chief shall promptly notify the applicant of such fact and grant the applicant an extension of time of not more than 10 days to complete the application properly. In addition, the applicant may request an extension, not to exceed 10 days, of the time for the city manager to act on the application. The time period for granting or denying a permit shall be stayed during the period in which the applicant is granted an extension of time. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10140.)

5.10.100 Investigation and action on application.

(a) Within five days after receipt of the properly completed application, the police chief shall grant or deny the application and so notify the applicant as follows:

(1) The police chief shall write or stamp “granted” or “denied” on the application and date and sign such notation.

(2) If the application is denied, the police chief shall attach to the application a statement of the reasons for denial.

(3) If the application is granted, the police chief shall attach to the application an adult-oriented business employee permit.

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

(b) The police chief shall grant the application and issue the permit unless the application is denied for one or more of the reasons set forth in subsection (d) of this section.

(c) If the police chief grants the application or if the police chief neither grants nor denies the application within five days after it is stamped as received (except as provided in Section 5.10.090(g)), the applicant may begin performing in the capacity for which the license was sought.

(d) The police chief shall deny the application for any of the following reasons:

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

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

(3) The adult-oriented business employee permit is to be used for performing in a business prohibited by state or city law;

(4) The applicant has been registered in any state as a prostitute;

(5) The applicant has been convicted of any of the offenses enumerated in Section 5.10.090(d)(5) or convicted of an offense outside the state that would have constituted any of the described offenses if committed within the state. A permit may be issued to any person convicted of the described crimes if the conviction occurred more than five years prior to the date of the application.

(e) Each adult-oriented business performer permit shall expire one year from the date of issuance and may be renewed only by filing with the police chief a written request for renewal, accompanied by the application fee and a copy of the permit to be renewed. The request for renewal shall be made at least 30 days before the expiration date of the permit. When made less than 30 days before the expiration date, the expiration of the permit will not be stayed. Applications for renewal shall be acted on as provided herein for applications for permits. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10145.)

5.10.110 Suspension or revocation of adult-oriented business regulatory permits and adult-oriented business performer permits.

(a) An adult-oriented business regulatory permit or adult-oriented business employee permit may be suspended or revoked in accordance with the procedures and standards of this section.

(b) On determining that grounds for permit revocation exist, the police chief shall furnish written notice of the proposed suspension or revocation to the permittee. Such notice shall set forth the time and place of a hearing, and the ground or grounds upon which the hearing is based, the pertinent code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the permittee, or shall be delivered to the permittee personally, at least 10 days prior to the hearing date. Hearings shall be conducted in accordance with procedures established by the police chief, but at a minimum shall include the following: all parties involved shall have a right to offer testimonial, documentary, and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The police chief’s decision may be appealed in accordance with Section 5.10.120.

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

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

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

(A) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation;

(B) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur;

(D) The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Cal. Penal Code Title 9, Chapter 7.5, Section 309, 315, 316, 318, 647(b) or 647.6 or the final disposition of the original charge;

(E) Any act constituting a violation of provisions in the California Penal Code relating to obscene matter or distribution of harmful matter to minors, including but not limited to Cal. Penal Code §§ 311 through 313.4;

(F) Any conduct prohibited by this chapter;

(3) Failure to abide by any disciplinary action previously imposed by an appropriate city official.

(d) After holding the hearing in accordance with the provisions of this section, if the police chief finds and determines that there are grounds for disciplinary action, based upon the severity of the violation, the police chief shall impose one of the following:

(1) A warning;

(2) Suspension of the permit for a specified period not to exceed six months;

(3) Revocation of the permit. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10150.)

5.10.120 Appeal hearing.

(a) After denial of an application for an adult-oriented business regulatory permit or an adult-oriented business performer permit, or after denial of renewal of a permit, or suspension or revocation of a permit, the applicant or person to whom the permit was granted may seek review of such administrative action within 15 days of the adverse determination by a written request to the city manager for a formal appeal hearing.

(b) The city manager shall appoint a hearing officer to hear the appeal within 15 days of the written request. The hearing officer shall set the matter for hearing within 45 days of receipt of the request.

(c) All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues, have discovery of relevant evidence, may be represented by counsel, and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.

(d) The hearing officer shall cause to be made an audio tape of the full hearing and shall create and maintain a full record of the hearing.

(e) Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness.

(f) The hearing officer shall render a written decision within 15 days of the close of the hearing. The decision of the hearing officer shall state all factual and legal reasons for the decision and that any petition for review must be filed not later than 90 days following the date the decision becomes final as provided in Cal. Civ. Proc. Code § 1095.6.

(g) The decision of the hearing officer shall be final and the applicant may seek judicial review pursuant to Cal. Civ. Proc. Code § 1094.8. (Ord. 2264 § 10, 10-14-97; Ord. 2370 § 1, 1-11-00. 1990 Code § 5-10155.)

5.10.130 Judicial review.

After denial of an application for an adult-oriented business regulatory permit or an adult-oriented business performer permit, or after denial of renewal of a permit, or suspension or revocation of a permit as provided in this chapter, or after denial of any application or revocation of any land use approval as provided in Titles 17 and 18, the applicant or person to whom the permit or approval was granted may seek judicial review of such adverse administrative action as provided in Cal. Civ. Proc. Code § 1094.8. The applicant, permittee, land use approval holder or license holder need not exhaust the remedy provided in Section 5.10.120 but may immediately pursue the remedy provided in Cal. Civ. Proc. Code § 1094.8. (Ord. 2370 § 2, 1-11-00. 1990 Code § 5-10156.)

5.10.140 Adult-oriented business development and performance standards.

(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.

(b) No adult-oriented business shall be operated in any manner that permits the observation of any material or activities depicting, describing or relating to “specified sexual activities” or “specified anatomical areas” (as defined in Section 18.25.070) from any public way or from any location outside the building or area of such establishment. This provision shall apply to any display, decoration, sign, show window or other opening. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times.

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

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

(e) Except for those businesses also regulated by the California Department of Alcoholic Beverage Control, an adult-oriented business shall be open for business only between the hours of 8:00 a.m. and 2:00 a.m. the following day.

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

(g) All indoor areas of the adult-oriented business within which patrons are permitted, except restrooms, shall be open to view by the management and city enforcement officers at all times.

(h) Any adult-oriented business which is also an “adult arcade” shall comply with the following provisions:

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

(2) An adult arcade viewing room may have a lockable louver door if it extends downward no further than 20 inches from the floor and upward no further than 63 inches from the floor and no closer than 15 inches to the top of the door frame as per Figure A, following subsection (h)(4) of this section. All interior walls within the viewing room must be clearly visible from outside the viewing room at all times. Nothing shall be constructed, placed, or hung to obstruct vision into a viewing room from outside the viewing room.

(3) The view area specified in subsection (h)(1) of this section shall remain unobstructed by any doors, walls, merchandise, display racks, or other materials at all times. No patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted.

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

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

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

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

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


Area	Foot-Candles
Bookstores and other retail establishments	20
Theaters and cabarets (except during performances, at which times lighting shall be at least 1.25 foot-candles)	5
Arcades	10
Motels/hotels (in public areas)	20
Modeling studios	20

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

(k) The following additional requirements shall pertain to adult-oriented businesses providing live entertainment depicting specified anatomical areas or involving specified sexual activities, except for businesses regulated by the alcoholic beverage control commission:

(1) No person shall perform live entertainment for patrons of an adult-oriented business except upon a stage at least 18 inches above the level of the floor 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 entertainer. “Entertainer” shall mean any person who is an employee or independent contractor of the adult-oriented business, or any person who, with or without any compensation or other form of consideration, performs live entertainment for patrons of an adult-oriented business.

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

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

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

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

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

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

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

(l) Adult-oriented businesses shall employ security guards in order to maintain the public peace and safety, based upon the following standards:

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

(2) Security guards for other adult-oriented businesses may be required if it is determined by the police chief that their presence is necessary in order to prevent any of the conduct listed in Section 5.10.110(b)(2) from occurring on the premises.

(3) Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. Security guards shall be uniformed in a manner distinct in color, style, design and appearance from a city police department or city uniform so as to be readily identifiable as a private security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of state law. No security guard required pursuant to this subsection shall act as a door person, ticket seller, ticket taker, admittance person, or sole occupant of the manager’s station while acting as a security guard.

(m) Building Signage.

(1) In adopting this signage regulation the city relies on the United States Court of Appeals decision Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389 (8th Cir. 1985) in which the court defines “harmful to minors” as “...that quality of any description or representation, in whatever form, of nudity, sexual conduct, or sexual excitement, when it: (i) predominately appeals to the prurient, shameful, or morbid interest of minors in sex, and (ii) is patently offensive to contemporary standards in the adult community as a whole with respect to what is suitable sexual material for minors, and (iii) taken as a whole, lacks serious literary, artistic, political, or scientific value.”

(2) The purpose of this regulation is to shield minors from the negative influences of adult-oriented graphic and textual representations by limiting the adult character of exterior building signage. The city council is aware of the compelling interest of the public in protecting the physical and psychological well-being of children and this interest includes shielding minors from the influence of exterior signage that is not obscene by adult standards but is injurious for minors. With the adoption of this regulation, adult-oriented businesses and the patrons of such businesses retain all rights to sell adult-oriented goods and services and to acquire such goods and services without hindrance. This regulation is designed only to preclude the harm to minors from public displays of adult-oriented text and graphics that may otherwise become available to minors in the absence of this regulation.

(3) All proposed exterior signage for an adult-oriented business shall be limited to the name of the business. The business name shall not contain specified anatomical area descriptions or specified sexual activity descriptions as defined in Section 18.25.070(j) and (k).

(4) All proposed exterior signage shall exclude graphic or descriptive signs describing harmful matter as defined in Upper Midwest Booksellers v. City of Minneapolis.

(5) All exterior signage shall comply with Chapter 18.193, except as modified in this chapter. To ensure compliance with all appropriate sign regulations, a separate sign permit shall be required for all exterior signage. Approval by the zoning administrator is required prior to issuance of sign permits.

(n) The foregoing applicable requirements of this section shall be deemed conditions of adult-oriented business regulatory permit approvals, and failure to comply with every such requirement shall be grounds for revocation of the permit issued pursuant to these regulations. (Ord. 2264 § 10, 10-14-97; amended during 2012 reformat; Ord. 9-2014 § 2, 3-4-14. 1990 Code § 5-10160.)

5.10.150 Register and permit number of employees.

Every permittee of an adult-oriented business which provides live entertainment depicting specified anatomical areas or involving specified sexual activities as defined in Section 18.25.070(j) and (k) must maintain a register of all persons so performing on the premises and their permit numbers. Such register shall be available for inspection during regular business hours by any police officer or enforcement officer of the city. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10165.)

5.10.160 Display of permit and identification cards.

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

(b) The police chief shall provide each adult-oriented business performer required to have a permit pursuant to this chapter with an identification card containing the name, address, photograph and permit number of such performer.

(c) An adult-oriented business performer shall have such card available for inspection at all times during which such person is on the premises of the adult-oriented business. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10170.)

5.10.170 Employment of and services rendered to persons under the age of 18 years prohibited.

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

(b) It shall be unlawful for any permittee, operator or other person in charge of any adult-oriented business to permit to enter, or remain within the adult-oriented business, any person who is not at least 18 years of age. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10175.)

5.10.180 Inspection.

An applicant or permittee shall permit representatives of the police department, community preservation division, revenue and tax, fire department, planning division, or other city departments or agencies to inspect the premises of an adult-oriented business for the purpose of ensuring compliance with the law and the development and performance standards applicable to adult-oriented businesses, at any time it is occupied or opened for business. A person who operates an adult-oriented business or his or her agent or employee is in violation of the provisions of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10180.)

5.10.190 Regulations nonexclusive.

The provisions of this chapter regulating adult-oriented businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the city council. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10180.)

5.10.200 Employment of persons without permits unlawful.

It shall be unlawful for any owner, operator, manager, or permittee in charge of or in control of an adult-oriented business which provides live entertainment depicting specified anatomical areas or involving specified sexual activities to allow any person to perform such entertainment who is not in possession of a valid, unrevoked adult-oriented business performer permit. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10185.)

5.10.210 Time limit for filing application for permit.

All persons who possess an outstanding business license heretofore issued for the operation of an adult-oriented business and all persons required by this chapter to obtain an adult-oriented business performer permit must apply for and obtain such a permit within 90 days of the effective date of this chapter. Failure to do so and continued operation of an adult-oriented business, or the continued performances depicting specified anatomical areas or specified sexual activities in an adult-oriented business, after such time without a permit shall constitute a violation of this chapter. (Ord. 2264 § 10, 10-14-97. 1990 Code § 5-10190.)