Chapter 2A
ADULT BUSINESSES1
Sections:
2A.4 Regulation of viewing booths.
2A.5 Access and control provision.
2A.9 Permit—Contents of application.
2A.11 Permit—Time to grant or deny.
2A.20 Prohibitions regarding minors and adult businesses.
2A.21 Advertising regulations.
2A.22 Parking and entrance lighting.
2A.24 Conduct constituting a public nuisance and/or misdemeanor.
2A.1 Definitions.
The following words and phrases shall, for the purposes of this chapter, be defined as follows, unless it is clearly apparent from the context that another meaning is intended. Should any of the definitions be in conflict with the current provisions of the Gilroy City Code, the definitions in this chapter shall prevail.
“Adult business” shall mean those businesses meeting one (1) or more of the following definitions:
(1) “Adult arcade” shall mean an establishment or portion thereof where, for any form of consideration, one (1) or more still or motion picture projectors, slide projectors, digital video monitors, or other image producing machines, are used to show films, motion pictures, laser disks, compact disks, digital videos or other digital recordings, holograms or other electronically generated images or devices, video cassettes, computer displays, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas for viewing by five (5) or fewer persons.
(2) “Adult bookstore,” “adult novelty store,” or “adult video store” shall mean a commercial establishment which has as a substantial portion of its stock-in-trade or a substantial portion of its revenues or devotes a substantial portion of its interior business or advertising to the sale, rental or viewing, for any form of consideration, of any one (1) or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, laser disks, compact disks, digital videos or other digital recordings, holograms or other electronically generated images or devices, video cassettes, slides, computer software or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; or instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.
a. An establishment may have other principal business purposes or operations that do not involve the offering for sale, rental, or viewing of material depicting or describing specified sexual activities or specified anatomical areas or other adult material and still be categorized as adult bookstore, adult novelty store, or adult video store. Such other business purposes or operations will not serve to exempt such establishments from being categorized as an adult bookstore, adult novelty store or adult video store so long as one (1) of its principal business purposes is offering for sale or rental, for some form of consideration, the adult material specified above.
b. A commercial establishment shall not be considered to be an adult bookstore, adult novelty store or adult video store, and shall not be required to obtain an adult business permit under this chapter where (1) the commercial establishment rents or sells the material set forth above exclusively for off-premises use by the customer, and (2) a portion of its business is not in selling or renting the adult material set forth above.
(3) “Adult cabaret” shall mean a nightclub, bar, restaurant, bottle club, or similar commercial establishment, whether or not alcoholic beverages are served, which features: (a) persons who appear semi-nude; (b) live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or (c) films, motion pictures, laser disks, compact disks, digital videos or other digital recordings, holograms or other electronically generated images or devices, video cassettes, computer software, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
(4) “Adult dance studio” shall mean any establishment or business which provides for members of the public a partner for dance where the partner is nude or semi-nude or where the partner, or the dance, is distinguished or characterized by the emphasis on matter depicting, or describing or relating to specified sexual activities or specified anatomical areas.
(5) “Adult entertainment enterprise” shall mean a commercial establishment, other than one (1) defined in this definition as an adult business, which has one (1) of its principal business purposes the offering of forms of entertainment on its premises involving the depiction or description of specified sexual activities or specified anatomical areas.
(6) “Adult hotel” or “adult motel” shall mean a hotel or motel or similar commercial establishment which: (a) offers public accommodations, for any form of consideration, which provide patrons with closed-circuit television transmissions, films, motion pictures, laser disks, compact disks, digital videos, holograms, electronically generated images or devices, including video software, video cassettes, slides or other photographic reproductions, which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and which advertise the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising including but not limited to newspapers, magazines, pamphlets or leaflets, radio or television; or (b) offers a sleeping room for rent for a period of time less than ten (10) hours; or (c) allows a tenant or occupant to subrent the sleeping room for a time period of less than ten (10) hours.
(7) “Adult motion picture theater” shall mean a commercial establishment where films, motion pictures, laser disks, compact disks, digital videos or other digital recordings, holograms or other electronically generated images or devices, video cassettes, computer software, slides or similar photographic reproductions characterized by the depiction or description of specified sexual activities or specified anatomical areas are regularly shown for any form of consideration.
(8) “Adult theater” shall mean a theater, concert hall, auditorium, or similar commercial establishment which, for any form of consideration, regularly features persons who appear semi-nude or live performances which are characterized by exposure of specified anatomical areas or by specified sexual activities.
(9) “Escort agency” shall mean a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one (1) of its primary business purposes for a fee, tip, or other consideration.
(10) “Figure modeling studio” shall mean any establishment or business which provides for members of the public the services of a live human model for the purpose of reproducing the human body, wholly or partially in the nude, by means of photograph, painting, computer software, sketching, drawing, or other pictorial form.
(11) “Sexual encounter establishment” shall mean a business or commercial establishment that as one (1) of its primary business purposes offers, for any form of consideration, a place where two (2) or more persons may congregate, associate, or consort for the purpose of specified sexual activities or the exposure of specified anatomical areas or activities when one (1) or more of the persons is semi-nude or in a state of nudity. The definition of adult business shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the State of California engages in medically approved and recognized sexual therapy.
(12) “Semi-nude model studio” shall mean any place where a person, who appears semi-nude or displays specified anatomical areas, is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons.
“Adult business permit” or “permit” shall mean that permit issued by the chief of police pursuant to this chapter.
“Adult material” shall mean accessories, paraphernalia, devices, books, magazines, laser disks, compact disks, digital videos, digital video disk devices, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, games, holograms or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
“Employee” shall mean a person who works or performs in and/or for an adult business, regardless of whether or not said person is paid a salary, wage or other compensation by the operator of said business.
“Escort” shall mean a person who, for any form of consideration or gratuity, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
“Establish” shall mean and include any of the following:
(1) To open or commence any such business as a new business; or
(2) To convert an existing business, whether or not an adult business, to any of the adult businesses defined in this section; or
(3) To add any of the adult businesses defined in this section to any other existing adult business; or
(4) To relocate any such adult business; or
(5) To expand by ten percent (10%) or more that portion of the floor area of the premises open to the public as an adult business. If an adult business has obtained a use permit under the requirements set forth in section 28 of the Zoning Ordinance, the maximum ten percent (10%) expansion requirement is measured over the term of the use permit.
“Nudity” or “state of nudity” shall mean the appearance of human bare buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast. “Nudity” or “state of nudity” shall not mean nor include a person who appears in a state of nudity in a modeling class operated:
(1) By a proprietary school, licensed by the State of California; a college, junior college, or university supported entirely or partly by taxation; or
(2) 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 partly by taxation; or
(3) In a structure which: (a) has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and (b) where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and (c) where no more than one (1) nude model is on the premises at any one (1) time.
“Operator” shall mean and include the owner, permittee, general manager, operator or person in charge of an adult business or proposed adult business.
“Permitted premises” shall mean any premises that requires a permit and that is classified as an adult business.
“Permittee” shall mean a person in whose name a permit to operate an adult business has been issued, as well as the individual listed as an applicant on the application for a permit.
“Person” shall mean any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, syndicate, county, city and county, municipality, district, joint powers authority or other political subdivision, or any other group or combination acting as a unit.
“Public building with programs for minors” shall mean any publicly owned building wherein training, education, or any other program designed primarily for minors is conducted.
“Public park or recreation area” shall mean public land which has been designated for park, recreational, or arts activities including, but not limited to, a park, playground, swimming pool, reservoir, athletic field, basketball or tennis courts, or similar public land.
“Religious institution” shall mean any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.
“Residential zone” shall mean property which is zoned for a single-family house, duplex, townhouse, multiple family dwelling(s), or mobile home park or subdivision, and campground, recreational trailer park, or travel trailer park.
“School” shall mean any publicly or privately owned or operated educational center or day care.
“Semi-nude” shall mean a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.
“Specified anatomical areas” shall mean and include any of the following:
(1) Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areolae; or
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
“Specified criminal act(s)” shall mean acts which are sexual crimes against children, sexual abuse, sexual assault, rape, prostitution, solicitation of prostitutes, pandering, pimping, unlawful acts of sexual intercourse, sodomy, oral copulation, or masturbation occurring on the premises of an adult business, or crimes including but not limited to distribution of obscenity or material harmful to minors.
“Specified sexual activities” shall mean and include any of the following:
(1) The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts; or
(2) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; or
(3) Masturbation, actual or simulated; or
(4) Human genitals in a state of sexual stimulation, arousal or tumescence; or
(5) Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (4) of this definition.
“Transfer of ownership or control of an adult business” shall mean and include any of the following:
(1) The sale, lease or sublease of the business; or
(2) The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
(3) The establishment of a trust, gift or other similar legal devise which transfers ownership or control of the business.
“Use permit” shall mean a conditional use permit approved by the City of Gilroy in accordance with section 28 and all other Zoning Ordinance regulations.
“Viewing booth” shall mean any portion of an adult business which portion is:
(1) Partially enclosed; and
(2) Has a floor area of less than one hundred fifty (150) square feet; and
(3) Is designed for viewing films, motion pictures, laser disks, compact disks, digital videos or other digital recordings, holograms or other electronically generated images or devices, video cassettes, computer displays, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. (Ord. No. 2010-04, § I, 2-1-10)
2A.2 Prohibition.
(a) It shall be unlawful for any person to use any premises for an adult business or establish or operate an adult business unless there has been first obtained from the chief of police an adult business permit as specified in this chapter, and then only as specified in the Zoning Ordinance, and subject to all other applicable regulations and conditions enumerated in the Zoning Ordinance and Gilroy City Code.
(b) It shall be unlawful for any person to use any premises for an adult business or establish or operate an adult business in violation of any city or county, state or federal statute, ordinance or regulation.
(c) It shall be unlawful for any person to use any premises for a sexual encounter establishment or operate a sexual encounter establishment in any zoning district of the city.
(d) It shall be unlawful for any owner or other person with managerial control over an adult business to permit any person on the premises of the adult business to engage in: (1) any live performance of sexual intercourse, oral copulation, or sodomy; or (2) any other live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, and/or the female breasts with less than a fully opaque covering 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 specific anatomical part required to be covered.
(e) It shall be unlawful for any operator, entertainer, employee or agent of an adult business providing live entertainment to permit to be performed, offer to perform or perform sexual intercourse, oral or anal copulation, fondling or physical stimulation of either clothed or unclothed human genitals, pubic regions, buttocks or female breasts with any patron.
(f) It shall be unlawful for any operator, entertainer, employee or agent of an adult business to permit any patron to touch, caress, or fondle the clothes or unclothed breast, buttocks, anus or genitals of any operator, entertainer, employee or agent of an adult business providing live entertainment or permit any entertainer, operator, employee or agent to touch, caress or fondle the clothed or unclothed breasts, buttocks, anus, or genitals of any patron.
(g) It shall be unlawful for any operator, entertainer, employee or agent of an adult business providing live entertainment to perform or permit to be performed any massage or escort services, or any services related thereto, on the premises of such adult business.
(h) It shall be unlawful for any employee who performs live entertainment in an adult business to directly solicit any gratuity from any patron and no person working in such adult business shall directly solicit any gratuity on their behalf. If any patron wishes to tip performers, any such tips shall be placed in containers placed at least six (6) feet from the stage on which live performances occur. No patron shall be permitted to throw money to performers, hand money directly to performers, place money in the performers’ costumes or otherwise place or throw money on the stage. Patrons shall be advised of this requirement by signs conspicuously displayed and placed on the barrier between patrons and performers and utilizing red or black printing of letters not less than one (1) inch in size.
(i) Any establishment providing adult entertainment will provide separate restroom facilities for male and female patrons and employees. Only one (1) person will be allowed in any of the restrooms set aside for use of patrons at any time, unless otherwise required by law, in which case the adult business will employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant will ensure that no person of the opposite sex is permitted in the restroom, that not more than one (1) person is permitted to enter a restroom stall, and that no person engages in any specified sexual activity in the restroom. Rest rooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The provisions of this subsection shall not apply to an adult business that deals exclusively with sale or rental of adult material which is not used or consumed on the premises, such as an adult bookstore or adult video store, and which does not provide restroom facilities to its patrons and the general public.
(j) The following additional requirements shall pertain to adult businesses providing live entertainment:
(1) No person shall perform live entertainment for patrons of an adult business except upon a stage at least eighteen (18) inches above the level of the floor which is separated by a distance of at least six (6) feet from the nearest area occupied by patrons, and no patron shall be permitted within six (6) feet of the stage while the stage is occupied by a performer. No performer shall be within six (6) feet of a patron, measured horizontally, while the performer is performing live entertainment.
(2) The adult business shall provide separate dressing room facilities for performers which are exclusively dedicated to the performers’ use. Separate dressing rooms shall be provided for male and female performers.
(3) The adult business shall provide an entrance/exit for performers that is separate from the entrance/exit used by patrons. The performers shall use the separate entrance/exit.
(4) The adult business shall provide access for performers between the stage and the dressing rooms that is completely separated from the patrons. If such separate access is not physically feasible, the adult business shall provide a minimum three (3) foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers which prevents any physical contact between patrons and performers.
(5) While on the premises of the adult business, no performer shall have physical contact with a patron and no patron shall have physical contact with a performer, which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the buttocks, perineum, anal region, or female breast with any part or area of any other person’s body either before or after any performance of any form of live entertainment by such performer. Patrons shall be advised of the no touching requirements by signs and, if necessary, by employees, independent contractors, or performers of the establishment. This prohibition does not extend to incidental touching.
(6) Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between performers and patrons required by this subsection. (Ord. No. 2010-04, § I, 2-1-10)
2A.3 Locational regulations.
(a) No person shall establish or cause or permit to be established an adult business premises within one thousand (1,000) feet of another adult business premises, within one thousand (1,000) feet of any school, public park or recreation area, or public building with programs for minors, or within one thousand (1,000) feet of any residential zone or religious institution.
(b) Any adult business lawfully established and lawfully operating under the Zoning Ordinance and Gilroy City Code is not in violation of these regulations by the subsequent establishment of a school, public park or recreation area, public building with programs for minors, residential zone, or religious institution within the respective distances specified above for each type of use. This provision applies only to the renewal of a valid use permit or adult business permit and does not apply when an application for a use permit or adult business permit is submitted after such permit has expired or has been revoked.
(c) Distance between any two (2) adult business premises shall be measured in a straight line, without regard to intervening structures or objects, from the nearest entrance of an adult business premises to the nearest entrance of the second adult business premises. The distance between any adult business premises and any religious institution, school, public park or recreation area, public building with programs for minors or residential zone shall also be measured in a straight line, without regard to intervening structures or objects, from the nearest entrance of the adult business premises to the nearest property line of a religious institution, school, public park or recreation area, public building or residential zone. (Ord. No. 2010-04, § I, 2-1-10)
2A.4 Regulation of viewing booths.
A person who establishes, causes to be established, operates or causes to be operated one (1) or more viewing booths shall comply with the following requirements:
(1) The application for a permit shall be accompanied by an accurately scaled diagram of the premises showing a plan thereof specifying the location of one (1) or more manager’s stations, the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager’s station may not exceed thirty-two (32) square feet of floor area with no dimension greater than eight (8) feet. The chief of police may waive the requirement to submit the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
(2) No alteration in the configuration or location of a manager’s station may be made without the prior approval of the chief of police.
(3) It is the duty of the owners and operator of the premises to ensure that at least one (1) employee is on duty and situated at each manager’s station at all times that any patron is present inside the premises.
(4) 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, including the entrance to each viewing booth, but excluding restrooms. Rest rooms may not contain video reproduction equipment. If the premises has two (2) or more manager’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one (1) of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station. However, in lieu of direct view from the manager’s station, an alternative system of monitoring and controlling the conduct of customers may be established if agreed to by the chief of police. The decision whether or not to allow the establishment of such an alternative system will be within the sole discretion of the chief of police.
(5) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present on the premises to ensure that the view area specified above remains unobstructed by any doors, walls, merchandise, display racks or other adult material at all times and to ensure that 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 in the application filed pursuant to this chapter.
(6) No viewing booth may be occupied by more than one (1) person at any one (1) time. No viewing booth shall be fully enclosed or have a door.
(7) The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access with an illumination of not less than two (2.0) foot candles as measured at the floor level.
(8) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present on the premises to ensure that the illumination described above is maintained at all times that any patron is present on the premises.
(9) It shall be the duty of the owners and operator, and of every person in charge of the business premises, and the duty of any agents and employees present on the premises, to maintain the walls or partitions between booths in good repair at all times, with no holes between any two (2) booths such as would allow viewing from one (1) booth into another or such as to allow physical contact of any kind between the occupants of any two (2) such booths; provided, however, that if the configuration approved by the city permits an opening between the floor and the bottom portion of any such wall or partition, or between the ceiling and the top portion of any such wall or partition, it shall be sufficient compliance if the entire wall or partition, as approved by the city, is maintained in good condition and repair, without holes or other openings in such wall or partition which would permit viewing or physical contact between occupants of adjacent booths.
(10) It shall be the duty of the owners and operator, and of every person in charge of the business premises, and the duty of any agents and employees, to prevent customers or visitors from loitering, standing idly by in the vicinity of any such viewing booth, or from remaining in the common area of such business, other than the restrooms, who are not then actively engaged in shopping for or viewing the products available on display for purchase or viewing; all such owners, operators, persons in charge, and their agents and employees shall have the duty to have posted and keep posted in prominent places in and near the viewing booths signs prohibiting loitering, and shall be responsible for enforcement of such prohibitions. (Ord. No. 2010-04, § I, 2-1-10)
2A.5 Access and control provision.
(a) The operator shall not permit any doors on the premises to be locked during business hours and, in addition, the operator shall be responsible to see that any room or area on the premises shall be readily accessible at all times and shall be open to view in its entirety for inspection by any law enforcement officer and/or code inspection officer and/or employee of a city agency.
(b) All building openings, entries, and windows for an adult business shall be located, covered, or screened in such a manner as to prevent a view into the interior of the adult business from any area open to the general public.
(c) No loudspeakers or sound equipment shall be used by an adult business for the amplification of sound to a level discernible by the public beyond the walls of the building in which the adult business is conducted.
(d) All exterior areas of an adult business, including buildings, landscaping, and parking areas, shall be maintained in a clean and orderly manner. (Ord. No. 2010-04, § I, 2-1-10)
2A.6 On-site manager.
All adult businesses shall have a responsible person on the premises to act as manager at all times during which the business is open. (Ord. No. 2010-04, § I, 2-1-10)
2A.7 Hours of operation.
(a) No operator of an adult business shall allow such adult business to remain open for business, or permit any employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 1:00 a.m. and 8:00 a.m. of any particular day, or in violation of the hours of operation specified in the use permit.
(b) No employee of an adult business shall engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 1:00 a.m. and 8:00 a.m. of any particular day, or in violation of the hours of operation specified in the use permit.
(c) The hours of operation set forth in this section may be restricted by a condition of the use permit. (Ord. No. 2010-04, § I, 2-1-10)
2A.8 Permit requirements.
(a) No adult business may be established within the city by right. All persons wishing to establish an adult business within the city must apply for and receive an adult business permit and comply with all other city ordinances and regulations.
(b) It is the burden of the applicant to supply evidence to justify the grant of a permit.
(c) Any person desiring to operate an adult business within the city shall file with the chief of police, or his designee, a permit application on a standard application form supplied by the city.
(d) It shall be an affirmative and ongoing obligation of the applicant to update and keep current the information contained in the application for a permit. It shall be grounds for revocation of the permit if an applicant fails to update the information in a timely manner.
(e) In addition to the requirements set forth in this chapter, a permit shall not become effective until such time as the applicant receives a use permit in accordance with the provisions of the Zoning Ordinance. (Ord. No. 2010-04, § I, 2-1-10)
2A.9 Permit—Contents of application.
(a) The applicant shall be the operator of the proposed adult business. All information submitted shall be sworn to be true and correct by the applicant.
(b) The application shall include the applicant’s current mailing address, and name and phone number of the person who is responsible for providing access to the proposed use for inspection purposes.
(c) The application shall list the legal form of the applicant; e.g., individual, partnership, corporation:
(1) If the applicant is an individual, the application shall list his or her legal name, any aliases and date of birth; and
(2) If the applicant is a partnership, the application shall list the full and complete name of the partnership, the legal names of all partners, dates of birth, and all aliases used by all of the partners, and whether the partnership is general or limited; and
(3) If the applicant is a corporation, the application shall list the full and complete corporate name, the date and state of its incorporation, evidence that the corporation is in good standing, the legal names, dates of birth, and all aliases used by all, and the capacity of all, officers, directors and principal stockholders (i.e., all stockholders with ten percent (10%) or more of all outstanding shares), and the name and address of the registered office or agent for service of process; and
(4) The applicant and all persons who must furnish a date of birth in the application shall furnish satisfactory proof of age.
(d) The application shall list whether, preceding the date of application, the applicant, or any of the persons required to be identified pursuant to this section, has:
(1) Had a previous permit under this chapter revoked, as well as the date of such revocation; and
(2) Been a partner in a partnership or an officer, director or principal stockholder of a corporation whose permit under this chapter has been revoked, as well as the date of the revocation.
(e) The application shall include the address of the proposed site, including the assessor’s parcel number and the complete legal description of the property.
(f) The application shall include a detailed description of the proposed adult business, including reference to definitions in this chapter.
(g) The application shall include a plot plan drawn to scale indicating all structures, existing or proposed, parking areas, landscaping, walls, driveways and curb cuts, signs, topographical features, and any other pertinent items necessary to make a permit determination under this chapter. If the proposed adult business includes viewing booths, the application shall include a diagram to comply with the requirements of section 2A.4.
(h) The applicant and all persons required to be identified pursuant to this section shall submit to fingerprinting for background checking purposes by the city’s police department.
(i) The applicant shall submit information on any criminal convictions for background checking purposes by the city’s police department. (Ord. No. 2010-04, § I, 2-1-10)
2A.10 Permit—Application fee.
The city council, by resolution, shall set a reasonable, nonrefundable application fee for a permit. The fee shall not exceed the reasonable estimated costs of the city to process the permit application. (Ord. No. 2010-04, § I, 2-1-10)
2A.11 Permit—Time to grant or deny.
(a) The chief of police shall grant, conditionally grant or deny an application for a permit within thirty (30) days from the date the application for the permit is deemed to be complete.
(b) Within fifteen (15) business days from the date the application is date-stamped received by the police department, the chief of police, or his designee, shall determine if the application is complete and in full conformance with the requirements for the contents of an application as set forth in this chapter. If the application is deemed incomplete, the police chief shall notify the applicant in writing of its deficiencies. (Ord. No. 2010-04, § I, 2-1-10)
2A.12 Permit—Grant or denial.
(a) The chief of police shall not issue a permit if he makes any of the following findings:
(1) An applicant is under twenty-one (21) years of age.
(2) An applicant or an applicant’s spouse is overdue on his payment to the city of taxes, fees, fines, or penalties assessed against him/her or imposed upon him/her in relation to an adult business.
(3) An applicant has failed to provide information required by this chapter or the permit application for the issuance of the permit or has falsely answered a question or request for information on the application form.
(4) The required application or permit fees have not been paid.
(5) The proposed location is in violation of, or is not in compliance with, any of the provisions of this chapter including, but not limited to, the locational requirements for an adult business under this chapter.
(6) The granting of the application would violate a city or county, state or federal statute, ordinance, regulation or court order.
(7) An applicant has had a permit under this chapter or a use permit for an adult business revoked within the preceding twelve (12) months.
(8) An applicant has been convicted of a violation of any provision of this chapter within the preceding twenty-four (24) months.
(9) An applicant has been convicted of at least one (1) of the specified criminal acts as defined in this chapter for which:
a. Less than two (2) years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a misdemeanor offense for the specified criminal act;
b. Less than five (5) years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a felony offense for the specified criminal act;
c. Less than five (5) years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the convictions are of two (2) or more misdemeanors for the specified criminal acts occurring within any twenty-four (24) month period.
(10) The fact that a conviction is being appealed shall have no effect on disqualification of the applicant. An applicant who has been convicted of specified criminal acts may qualify for a permit only when the time period required above has elapsed.
(b) If the police chief disapproves the application, within five (5) business days of his decision he shall mail to the applicant a notice of his action stating the reasons the application was denied. (Ord. No. 2010-04, § I, 2-1-10)
2A.13 Permit denial—Appeal.
(a) An applicant may appeal a denial of a permit to the city council by filing with the city clerk a request for appeal within ten (10) days after the date of mailing of notice by the chief of police that the permit was denied. The request for appeal shall be in writing and set forth the grounds for the appeal. The city clerk shall set the matter for a public hearing at the first available regularly scheduled meeting of the city council, not less than two (2) weeks nor later than thirty (30) days after the filing of the appeal.
(b) The city council shall not be bound by formal rules of evidence at the public hearing.
(c) The city council shall make its decision on the permit not later than the next regularly scheduled meeting.
(d) Within ten (10) days after the decision of the city council, notice of the decision and a copy of the findings shall be mailed to the applicant and to any other person who has filed a written request for such notification. (Ord. No. 2010-04, § I, 2-1-10)
2A.14 Revocation of permit.
(a) Any permit issued pursuant to the provisions of this chapter may be revoked by the city on the basis of finding a violation of any of the provisions of this chapter. A permit shall only be revoked in accordance with the procedures set forth in this section.
(b) The chief of police shall report all facts and information relating to the alleged violation(s) of this chapter to the city administrator who shall set the matter for a public hearing at the first available regularly scheduled meeting of the city council not less than two (2) weeks nor later than thirty (30) days after receipt of the report.
(c) The city council shall revoke a permit if it makes one (1) or more of the following findings:
(1) A permittee or agent gave false or misleading information in the material submitted during the application process that tended to enhance the applicant’s opportunity for obtaining a permit.
(2) A permittee or an employee has knowingly allowed possession, use or sale of controlled substances on the premises.
(3) A permittee or an employee has knowingly allowed prostitution or other specified criminal acts on the premises.
(4) A permittee or employee has been convicted of a specified criminal act for which the time period required in this chapter has not elapsed. The fact that a conviction is being appealed shall have no effect on the revocation of the permit. Should all such convictions be finally overturned on appeal, however, the permit shall be automatically reinstated. The term of a reinstated permit shall be the amount of time the permit would have remained in effect but for the revocation. A reinstated permit shall remain subject to all provisions of this section.
(5) A permittee is convicted of tax violations related to an adult business.
(6) A permittee or an employee has knowingly permitted a violation of any Gilroy ordinance or state or federal law that regulates adult businesses or the harmful secondary effects sought to be avoided by this chapter.
(7) The business or activity has been conducted in a manner which violates one (1) or more of the conditions imposed upon the issuance of the permit or which fails to conform to the plans and procedures described in the application.
(8) The permittee has failed to obtain or maintain all required city, county, and state licenses and permits.
(9) The permit is being used to conduct an activity different from that for which it was issued.
(10) The permitted business creates sound levels which violate the noise control ordinance of the city.
(11) The adult business for which the permit was granted has ceased to operate for three (3) months or more.
(12) The permittee has directly or indirectly attempted to transfer the permit without complying with the regulations for transfer of a permit.
(13) The permittee has completed a transfer of ownership or control of an adult business without complying with this chapter.
(d) Written notice of hearing on the proposed permit revocation, together with written notification of the specific grounds of complaint against the permittee, shall be personally delivered or sent by certified mail to the address on the permittee’s application for the permit at least ten (10) days prior to the hearing.
(e) The city council shall hold a public hearing on the revocation. The city council shall not be bound by formal rules of evidence at the hearing.
(f) The city council shall make its decision on the permit within thirty (30) days of the conclusion of the public hearing.
(g) The city council shall revoke, not revoke, or not revoke but add additional conditions to the permittee’s permit. The city council’s action shall be final and conclusive.
(h) Within ten (10) days after the decision of the city council, notice of the decision and a copy of the findings shall be mailed to the applicant and to any other person who has filed a written request for such notification. (Ord. No. 2010-04, § I, 2-1-10)
2A.16 Judicial review.
After a final decision of the city on a permit, the applicant or permittee or other person having standing may seek prompt judicial review of such action in any court of competent jurisdiction. (Ord. No. 2010-04, § I, 2-1-10)
2A.17 Permit—Expiration.
(a) Any unrevoked permit issued pursuant to this chapter shall, by its own terms, expire no later than one (1) year after its issuance.
(b) Any permit approved pursuant to this chapter shall be effective on the later date of the date of issuance or the date a valid use permit for the premises of the proposed adult business is issued. The permit shall become null and void unless the proposed adult business is established within three (3) months of the date the permit becomes effective. (Ord. No. 2010-04, § I, 2-1-10)
2A.18 Transfer of permit.
(a) A permittee shall not operate an adult business under the authority of a permit at any place other than the address designated in the application for permit.
(b) A permittee shall not transfer his permit to another person unless and until such other person satisfies the following requirements:
(1) Obtains an amendment to the permit from the chief of police which provides that he is now the permittee, which amendment may be obtained only if he has completed and properly filed an adult business permit application with the chief of police, setting forth the information called for under this chapter in the application; and
(2) Pays a transfer fee of the full amount of the annual permit fee set by this chapter.
(c) No permit may be transferred after the chief of police has notified the permittee in writing that suspension or revocation proceedings have been or will be brought against the permittee.
(d) A permittee shall not transfer his permit to another location.
(e) Any attempt to transfer a permit either directly or indirectly in violation of this chapter is hereby declared void and shall be grounds for revocation of the permit. (Ord. No. 2010-04, § I, 2-1-10)
2A.19 Inspection.
An applicant or permittee shall permit representatives of the police department, planning department, building department, the health department, the fire department, and/or any other city or county agency to inspect the premises of an adult business for the purpose of ensuring compliance with all laws and regulations, at any time it is occupied or open for business, regardless of whether or not a permit has been issued for said business under this chapter. (Ord. No. 2010-04, § I, 2-1-10)
2A.20 Prohibitions regarding minors and adult businesses.
(a) No person who operates or causes to be operated an adult business, regardless of whether or not a permit has been issued for said business under this chapter, shall knowingly, or with reasonable cause to know, permit, suffer, or allow:
(1) Admittance of a person under eighteen (18) years of age to the business premises; or
(2) A person under eighteen (18) years of age to remain at the business premises; or
(3) A person under eighteen (18) years of age to purchase goods or services at the business or premises; or
(4) A person under eighteen (18) years of age to work at the business premises as an employee.
(b) All entrances to an adult business shall be clearly and legibly posted by a notice indicating that persons under eighteen (18) years of age are prohibited from entering the premises. (Ord. No. 2010-04, § I, 2-1-10)
2A.21 Advertising regulations.
(a) No person who operates or causes to be operated an adult business, regardless of whether or not a permit has been issued for said business under this chapter, shall advertise the presentation of any activity prohibited by any applicable state statute or local ordinance.
(b) Advertisements, displays or other promotional material depicting or describing specified anatomical areas or specified sexual activities, or displaying instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities shall not be shown or exhibited so as to be visible from areas outside the adult business. (Ord. No. 2010-04, § I, 2-1-10)
2A.22 Parking and entrance lighting.
All off-street parking areas and building entries serving the adult business shall be illuminated during all hours of operation with a lighting system designed to provide a minimum maintained horizontal illumination of greater than one (1) foot candle of light on the parking surface and/or walkway. In the event the adult business shares its parking with other businesses, this requirement shall only apply within a radius of one hundred (100) feet from any entrance into the adult business. (Ord. No. 2010-04, § I, 2-1-10)
2A.23 Additional violations.
Permits for adult businesses shall be required and governed by the procedures and policies specified in this chapter. In addition, any adult business shall be subject to the following restrictions:
(1) No person shall establish, operate or cause to be operated an adult business, regardless of whether or not a permit has been issued for said business under this chapter, if said person knows or should know that:
a. The business does not have a permit under this chapter for any applicable classification.
b. The business has a permit which has been revoked.
c. The business does not have a currently valid use permit granted in accordance with the Zoning Ordinance regulations governing adult businesses.
(2) No person shall establish, operate or cause to be operated an adult business outside of the shopping center commercial district (C3).
(3) No person shall establish, operate or cause to be operated an adult business within two hundred fifty (250) feet of any residential zone or religious institution; or within one thousand (1,000) feet of any school, public park or recreation area, public building with programs for minors, or other adult business.
(4) No person shall establish, operate, cause to be operated or permit the operation, establishment, or maintenance of more than one (1) adult business within the same building, structure, or portion thereof, without complying with all applicable laws and regulations, regardless of whether or not a permit has been issued for said business or businesses under this chapter.
(5) A person having a duty under this chapter commits a misdemeanor if he causes or permits a violation of that duty. (Ord. No. 2010-04, § I, 2-1-10)
2A.24 Conduct constituting a public nuisance and/or misdemeanor.
(a) The conduct of any adult business within the city in violation of any of the terms of this chapter is hereby found and declared to be a public nuisance.
(b) It shall be unlawful and a person commits a misdemeanor if he violates any provision of this chapter governing an adult business. Such violation shall be punishable by a fine of one thousand dollars ($1,000) and/or thirty (30) days’ imprisonment. (Ord. No. 2010-04, § I, 2-1-10)
2A.25 Injunction.
A person who operates or causes to be operated an adult business without having a valid permit is subject to a suit for injunction as well as prosecution for the criminal violation. If such an injunction is issued, attorneys’ fees and costs will be assessed at the discretion of the court against the adult business. (Ord. No. 2010-04, § I, 2-1-10)
Cross references—Display of harmful materials to minors prohibited, § 14.3; regulation of adult businesses, Zoning Ordinance.