Chapter 9.28
ADULT-ORIENTED BUSINESSES*
Sections:
9.28.040 Adult-oriented business regulatory permit required.
9.28.060 Investigation and action on application.
9.28.080 Transfer of adult-oriented business regulatory permits.
9.28.090 Adult-oriented business performer permit.
9.28.100 Investigation and action on application.
9.28.120 Appeal of denial, suspension or revocation.
9.28.130 Adult-oriented business development and performance standards.
9.28.140 Display of permit and identification cards.
9.28.150 Employment of and services rendered to persons under the age of eighteen years prohibited.
9.28.170 Regulations nonexclusive.
9.28.190 Employment of persons without permits.
* Prior ordinance history: Ords. 597 and 677.
9.28.010 Legislative purpose.
It is the purpose of this chapter to regulate adult-oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the city of San Pablo. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including adult-oriented materials. Similarly, it is not the intent or effect of this chapter to restrict or deny access by adults to adult-oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult-oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene material. (Ord. 07-009 § 3 (part), 2007)
9.28.020 Definitions.
The terms used in this chapter shall have the same meanings as set forth in Chapters 17.68 and 17.70 of this code. (Ord. 07-009 § 3 (part), 2007)
9.28.030 Permits required.
A. No person shall engage in, conduct or carry on, or permit to be engaged in, conducted or carried on, in or upon any premises in the city of San Pablo, the operation of an adult-oriented business unless the person first obtains and continues to maintain in full force and effect a permit from the city of San Pablo as herein required. (Adult-oriented business regulatory permit)
B. No person shall 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 of San Pablo as herein required. (Adult-oriented business performer permit). (Ord. 07-009 § 3 (part), 2007)
9.28.040 Adult-oriented business regulatory permit required.
Every person who proposes to maintain, operate or conduct an adult-oriented business in the city of San Pablo 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. Such permit shall expire one year from the date of issuance and may only be renewed by the permittee by filing a written request for renewal with the police chief on a form provided by the city, along with a nonrefundable renewal fee as established by the city council. The request for renewal shall be made at least thirty days before the expiration date. When made less than thirty days before the expiration date, the expiration of the permit shall not be stayed. The police chief shall act upon applications for permit renewal as provided herein for applications for permits. (Ord. 07-009 § 3 (part), 2007)
9.28.050 Applications.
A. Adult-oriented business regulatory permits are nontransferable, except in accordance with Section
9.28.080. 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. 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 eighteen 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 California, 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 ten percent or greater interest in the business entity shall sign the application.
C. The applicant shall provide two-color passport-photographs taken within six months prior to the date of the application. Any fees for the photo shall be paid by the applicant.
D. 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.
E. The applicant shall provide a description of the type of adult-oriented business 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. If the applicant does not own the lot or parcel on which the business will operate, the property owner or lessor of the premises, or their legally authorized representative, as applicable, must consent to the filing of the application by signing and dating the application.
F. The applicant shall provide the address to which notice of action on the application is to be mailed.
G. The applicant shall provide an operations description letter that describes in detail the proposed adult-oriented business and how it will satisfy the design and performance standards of this chapter.
H. The applicant shall provide the names of all employees, independent contractors, and other persons who will perform at the adult-oriented business, who are required by Section 9.28.090 to obtain an adult-oriented business performer permit (for ongoing reporting requirements see Section 9.28.090).
I. The applicant shall provide 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.
J. The applicant shall provide a site plan drawing prepared within thirty 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 one thousand feet of the primary entrance of the adult-oriented business for which a permit is requested; and (2) the property lines of any religious institution, school, or park, within seven hundred fifty feet, or residential zone within two hundred fifty feet, of the primary entrance of the adult-oriented business.
K. The applicant shall provide 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 9.28.130(C).
L. The applicant shall provide a statement in writing and dated by the applicant certifying under penalty of perjury that the information contained in the application is true and correct. If the applicant is one or more natural persons, one such person must sign the application under penalty of perjury. If the applicant is a partnership, limited liability company or corporation, a general partner, officer, director or member of the entity must sign the application under penalty of perjury.
M. The applicant shall provide a detailed description of all criminal convictions or offenses described in Section 9.28.070(F); and whether any individual who will own or operate the adult-oriented business is required to register under the provisions of Section 290 of California Penal Code or Section 11590 of the California Health and Safety Code. The applicant shall also provide all necessary authorizations for the city, its agents and employees to seek information and conduct an investigation into the truth of the statements set forth in the application and the qualifications of the individuals, including state and local summary criminal history information to the extent allowed by law. (Ord. 07-009 § 3 (part), 2007)
9.28.060 Investigation and action on application.
A. If the police chief determines that the applicant has completed the application improperly or that an application is incomplete, the police chief shall within three working days notify the applicant of such fact and shall identify the deficiencies in the application. Upon receipt of a completed application and payment of the application and permit fees, the police chief shall immediately mark the application as “received and complete” 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 thirty calendar days of receipt of the completed application, 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 17.62.010; and that the applicant has met all of the development and performance standards and requirements of Section 9.28.130, unless the application is denied for one or more of the reasons set forth in Section 9.28.070. The permittee shall post the permit conspicuously in the adult-oriented business premises.
D. If the police chief neither grants nor denies the application within thirty calendar days after it is deemed complete, the application is deemed granted, except as prevented by the minimum proximity requirements set forth in Section 17.62.010, and subject to strict compliance with the development and performance standards and requirements of Section 9.28.130. (Ord. 07-009 § 3 (part), 2007)
9.28.070 Permit denial.
The police chief shall deny the application for any of the following reasons:
A. The applicant has knowingly made any false, misleading or fraudulent statement of material fact in the application for an adult-oriented business regulatory permit.
B. An applicant is under eighteen years of age.
C. The required application fee has not been paid.
D. The adult-oriented business does not comply with the locational standards set forth in Section 17.62.010, or the off-street parking requirements set forth in this code.
E. The applicant or any owner, managing partner, officer, or any other operator, manager, employee or agent of the applicant has had a permit for an adult-oriented business revoked or suspended by any governmental entity within the past two years.
F. The applicant or any owner, managing partner, officer or any other operator, manager, employee or agent of the applicant has pled guilty, nolo contendere or been convicted of any of the following offenses or convicted of an offense outside the state of California that would have constituted any of the following offenses if committed within the state of California: Sections 243.4, 261, 266a through 266j, inclusive, 267, 314, 315, 316, 318, or subdivisions (a), (b) and (d) of Section 647 of the California Penal Code; any offense requiring registration under provisions of either Section 290 of the California Penal Code or Section 11590 of the California Health and Safety Code; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing, giving away, of a controlled substance specified in Section 11054, 11055, 11056, 11057 or 11058 of the California Health and Safety Code, and 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 Sections 311 through 313.4, as those sections may hereafter be amended, and (1) less than two years have elapsed since the date of conviction or the date of release from confinement for a conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (2) less than five years have elapsed since the date of conviction or the date of release from confinement for a conviction to the date of conviction, whichever is the later date, if the conviction is a felony; or (3) less than five years have elapsed since the date of the last conviction or the date of release from confinement for a conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four-month period. (Ord. 07-009 § 3 (part), 2007)
9.28.080 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. Such an amendment may be obtained only if the transferee files an application with the police chief in accordance with Sections 9.28.040 and 9.28.050, 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 9.28.060 that the transferee would be entitled to the issuance of an original permit.
C. Any attempt to transfer a permit either directly or indirectly in violation of this section is declared void, and the permit shall be deemed revoked. (Ord. 07-009 § 3 (part), 2007)
9.28.090 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 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 9.28.040, with the names of all performers required to obtain an adult-oriented business performer permit, within thirty 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 performer permits.
C. The application for a performer permit shall be made on a form provided by the police chief. An original and two copies of the completed and sworn performer 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 performer permit applicant has pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex-related offense, or of Sections 243.4, 261, 266a through 266j, inclusive, 267, 314, 315, 316, 318, or subdivisions (a), (b) and (d) of Section 647 of the California Penal Code; any offense requiring registration under provisions of either Section 290 of the California Penal Code or Section 11590 of the California Health and Safety Code; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing, giving away, of a controlled substance specified in Section 11054, 11055, 11056, 11057 or 11058 of the California Health and Safety Code, and 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 Sections 311 through 313.4, as those sections may hereafter be amended, and (1) less than two years have elapsed since the date of conviction or the date of release from confinement for a conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (2) less than five years have elapsed since the date of conviction or the date of release from confinement for a conviction to the date of conviction, whichever is the later date, if the conviction is a felony; or (3) less than five years have elapsed since the date of the last conviction or the date of release from confinement for a conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four-month period;
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 eighteen 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 performer permit, the applicant shall attach a copy of the performer permit to be renewed.
E. The information provided in subsections (D)(1) through (D)(10) of this section shall be redacted from any public disclosure under the California Public Records Act to protect the physical security of the performers.
F. 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.
G. Upon receipt of an application and payment of the application fees, the police chief shall immediately mark the application as received and within three working days determine if the application is complete and notify the applicant if the application is deemed incomplete. (Ord. 07-009 § 3 (part), 2007)
9.28.100 Investigation and action on application.
A. Within two working days after determination that an application is complete, 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 performer permit.
4. The application as granted or denied and the performer 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 performer 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, the applicant may begin performing in the capacity for which the performer permit was sought. If the police chief is unable to complete his or her investigation within such period, due to lack of responses from other agencies or other difficulties in investigating, a provisional performer permit shall be issued, authorizing a performer to commence performance at an adult-oriented business which possesses a valid adult-oriented business regulatory permit authorized to provide live entertainment. Such provisional performer permit shall be in effect pending the chief’s decision on the application, and shall be considered a final performer permit if the chief does not issue a final decision within thirty days following issuance of the provisional performer permit.
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 performer permit or in any report or document required to be filed with the application;
2. The applicant is under eighteen years of age;
3. The adult-oriented business performer 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 9.28.090(D)(5) or convicted of any offense outside the state of California that would have constituted any of the described offenses if committed within the state of California. A performer 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. The performer permit shall expire one year from the date of issuance and may only be renewed by the applicant by filing a written request for renewal with the police chief on a form provided by the city, along with a nonrefundable renewal fee as established by the city council. The request for renewal shall be made at least thirty days before the expiration date. Such application shall consist of all of the elements prescribed by Section 9.28.090 except that the renewal applicant’s fingerprints shall not be required. When made less than thirty days before the expiration date of the performer permit, the expiration of the performer permit shall not be stayed. The police chief shall act upon applications for renewal of performer permits as provided herein for applications for performer permits. (Ord. 07-009 § 3 (part), 2007)
9.28.110 Suspension or revocation of adult-oriented business regulatory permits and adult-oriented business performer permits.
An adult-oriented business regulatory permit or adult-oriented business performer permit may be suspended or revoked in accordance with the procedures and standards of this section.
A. Upon receiving a recommendation that grounds may exist for revocation or suspension of a permit or performer permit, 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 to be conducted by the police chief or a hearing officer appointed to conduct the hearing and render a recommendatory decision to the police chief, the ground or grounds upon which the proposed suspension or revocation 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 ten calendar days prior to the hearing date. At the hearing, the permittee will have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues, and may be represented by counsel. The chief or hearing officer will not be bound by the formal rules of evidence. 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 9.28.120.
B. A permittee may be subject to suspension or revocation of his or her permit/performer 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 or his or her employee, agent, partner, director, stockholder or manager, has knowingly made any false, misleading or fraudulent statement of material facts in the application for a permit.
2. The permittee or his or her employee, agent, partner, director, stockholder or manager, 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, or immediate area near, 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 occur;
c. Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code;
d. The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Sections 315, 316, or 318 or subdivision b of Section 647 of the California Penal Code;
e. 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 Sections 311 through 313.4;
f. Any conduct constituting a criminal offense of which an essential element consists of use of force or violence;
g. Any act constituting a felony involving the sale, use, possession, or possession for sale of any controlled substance specified in Sections 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code;
h. The establishment, including the building and lot or portion thereof where the establishment is or is proposed to be situated, and the physical facilities and maintenance related thereto, fails to comply with all applicable building, fire, electrical, plumbing, health and zoning requirements of this code, all applicable state and federal requirements of a similar nature which are customarily enforced by the city, and all provisions of this chapter;
i. The existence of the condition of the premises as hazardous or unsafe for human occupancy;
j. Failure to comply with any other provisions of this chapter.
3. The permittee or his or her employee, agent, partner, director, stockholder or manager, has knowingly failed to abide by a disciplinary action previously imposed by an authorized city official.
4. The permittee or his or her employee, agent, partner, director, stockholder or manager, has knowingly allowed the approved use of the adult-oriented business to be substantially enlarged without city approval.
5. More than thirty days have elapsed since a tax, fee, fine, any form of regulatory assessment or judgment for monetary damages, irrespective of any other form of relief set out in the judgment, which is to be paid to the city, has been imposed against the adult-oriented business, and said sum remains owing.
6. Where a permit for an adult-oriented business is revoked pursuant to any applicable law, the premises shall be closed and shall not be used as an adult-oriented business of any classification for a period of one year. Further, the operators of the adult-oriented business so closed shall be disqualified from operating any other adult-oriented business established thereafter within the city for a period of one year.
C. 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. Suspension of the permit for a specified period not to exceed six months;
2. Revocation of the permit. (Ord. 07-009 § 3 (part), 2007)
9.28.120 Appeal of denial, suspension or revocation.
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/performer permit, or suspension or revocation of a permit/performer permit, the applicant or person to whom the permit/performer permit was granted may seek review of such administrative action by the city manager by filing an appeal in the city clerk’s office within ten days of the date of the decision, along with an appeal fee as set forth by city council resolution. The city manager or designee shall review the record of the hearing, and may affirm, overrule or adjust the action taken.
B. The denial of an application or renewal, or the suspension or revocation of a permit/performer permit shall be stayed during the pendency of any appeal, until the issuance of the city manager’s decision on appeal.
C. The city shall make all reasonable efforts to expedite judicial review, if requested by the permittee. If the denial, suspension or revocation is affirmed on review, the applicant or permittee may seek prompt judicial review of such administrative action pursuant to California Code of Civil Procedure Section 1094.5, and shall be entitled to expedited judicial review pursuant to Code of Civil Procedure Section 1094.8, which should be referenced in the decision. (Ord. 07-009 § 3 (part), 2007)
9.28.130 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 district, and building regulations and standards adopted by the city of San Pablo.
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” 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 areas and premise entries of the adult-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 adult-oriented business for the personal safety of patrons, employees, and independent contractors 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. Hours of Operation. No owner, operator, manager, independent contractor or employee with control of the operation of an adult-oriented business shall allow such business to remain open for business, or to permit any employee, independent contractor or performer 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 two a.m. and eleven a.m. of any day excepting herefrom an “adult hotel/motel.”
E. The building entrance to an adult-oriented business shall be clearly and legibly posted with a notice indicating that persons under eighteen years of age are precluded from entering the premises. The notice shall be constructed and posted only following submission to the police chief, who shall approve or deny. No person under the age of eighteen years shall be permitted within the premises at any time.
F. All indoor areas of the adult-oriented business within which patrons are permitted, except rest rooms, shall be open to view by the management at all times.
G. 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. When any patron is present inside the premises, at least one manager shall be situated at a location within the premises which provides the manager with an unobstructed view of the entire area accessible to patrons. Within adult oriented businesses lawfully configured to include more than one open room accessible to patrons, sufficient additional managers must be present to permit management personnel to maintain an unobstructed view of the entirety at all times of all areas accessible to patrons.
2. The view area 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.
3. No viewing room may be occupied by more than one person at any one time.
4. 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.
5. 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, unless 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.
6. 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 permit to conduct the adult-oriented business.
H. All areas of the adult-oriented business shall be illuminated at a minimum of the following footcandles, minimally maintained and evenly distributed at ground level:
|
Area |
Footcandles |
|---|---|
|
Bookstores and other retail establishments |
20 |
|
Theaters and cabarets |
5 (except during performances, at which times lighting shall be at least 1.25 footcandles) |
|
Arcades |
10 |
|
Models/Hotels |
20 (in public areas) |
|
Modeling Studios |
30 |
I. The adult-oriented business shall provide and maintain separate rest room facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the rest room(s) for females, and female patrons and employees shall be prohibited from using the rest room(s) for males, except to carry out duties of repair, maintenance and cleaning of the rest room facilities. The rest rooms shall be free from any adult material. Rest rooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The provisions of this paragraph shall not apply to an adult-oriented business which 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 rest room facilities to its patrons or the general public.
J. The following additional requirements shall pertain to adult-oriented businesses providing live entertainment depicting specified anatomical areas or involving specified sexual activities.
1. No person shall perform adult live entertainment for patrons of an adult-oriented business except upon a stage at least eighteen inches above the level of the floor which is separated by a distance of at least six feet from the nearest area occupied by patrons, and no patron shall be permitted within six feet of the stage while the stage is occupied by a performer. No performer shall be within six feet of a patron, measured horizontally, while the performer is performing adult live entertainment.
2. The adult-oriented 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-oriented business shall provide an entrance/exit for performers which is separate from the entrance/exit used by patrons. The performers shall use the separate entrance/exit.
4. The adult-oriented business shall provide access for performers 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 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-oriented 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 adult 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 inches in height shall be maintained establishing the separations between performers and patrons required by this subsection.
7. No patron shall directly pay or give any gratuity to any performer and no performer shall solicit any pay or gratuity from any patron.
K. Adult-oriented businesses shall employ state-licensed 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 thirty-five persons, an additional security guard shall be on duty.
2. Additional security guards for 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 9.28.110(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 such a manner so as to be readily identifiable as a 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, ticker taker, admittance person, or sole occupant of the manager’s station while acting as a security guard.
L. On-Site Manager—Security Measures.
1. All adult businesses shall have a responsible person who shall be at least eighteen years of age and shall be on the premises to act as manager at all times during which the business is open. No performer may serve as the manager. The individual(s) designated as the on-site manager shall provide his/her name to the police chief to receive all complaints and be given by the owner and/or operator the responsibility and duty to address and immediately resolve all violations taking place on the premises.
2. No performer shall be within six feet of a patron while the performer is performing. This six-foot separation shall be marked by a continuous railing or other physical barrier designed to obstruct any contact between the performer and the patron(s). Patrons shall be advised of the separation and no touching requirements 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 inch in size.
3. If patrons wish to pay or tip performers, payment or tips shall be placed in containers placed at least six feet from the stage or other area used by the performers. Patrons shall not throw money to performers, hand money directly to performers, place monies in the performers’ costumes or otherwise place or throw monies 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 inch in size.
M. Adult Motion Picture Theater. The following additional requirements shall apply to adult motion picture theaters. The theater shall comply with each of the following provisions:
1. Have individual, separate seats, not couches, benches, or the like, to accommodate the maximum number of persons who may occupy the hall or auditorium area;
2. Have a continuous main aisle alongside the seating areas in order that each person seated in the hall or auditorium area shall be visible from the aisle at all times; and
3. Have a sign posted in a conspicuous place at or near each entrance to the hall or auditorium area which lists the maximum number of persons who may occupy the hall or auditorium area, which number shall not exceed the number of seats within the hall or auditorium area.
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 and other requirements of this code shall be grounds for revocation of the permit issued pursuant to these regulations. (Ord. 07-009 § 3 (part), 2007)
9.28.140 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 performer 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. 07-009 § 3 (part), 2007)
9.28.150 Employment of and services rendered to persons under the age of eighteen years prohibited.
A. No permittee, operator, or other person in charge of any adult-oriented business shall provide any service for which it requires such permit to, or to employ, any person who is not at least eighteen years of age.
B. No permittee, operator or other person in charge of any adult-oriented business shall permit to enter, or remain within the adult-oriented business, any person who is not at least eighteen years of age. (Ord. 07-009 § 3 (part), 2007)
9.28.160 Inspection.
An applicant or permittee shall permit representatives of the police department, health department, fire department, planning division, or other city departments or agencies to inspect the premises of an adult-oriented business for the purpose of insuring 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. 07-009 § 3 (part), 2007)
9.28.170 Regulations nonexclusive.
The provisions of this article 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 of the city of San Pablo. (Ord. 07-009 § 3 (part), 2007)
9.28.180 Violations.
A. Any owner, operator, manager, employee or independent contractor of an adult business violating or permitting, counseling, or assisting the violation of any of these provisions regulating adult businesses shall be subject to any and all civil remedies, including permit revocation and imposition of administrative fines pursuant to Chapter 1.10. All remedies provided herein shall be cumulative and not exclusive. Any violation of these provisions shall constitute separate violation for each and every day during which such violation is committed or continued.
B. In addition to the remedies set forth in Section 9.28.110, any adult business that is operating in violation of these provisions regulating adult businesses is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation.
C. The regulations imposed pursuant under this chapter are part of a regulatory permitting process, and any violation of this chapter does not constitute a criminal offense. Notwithstanding any other provision of the San Pablo Municipal Code, the city does not impose a criminal penalty for violations of the provisions of this chapter related to expressive conduct or activities. (Ord. 07-009 § 3 (part), 2007)
9.28.190 Employment of persons without permits.
No 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 shall allow any person to perform such entertainment who is not in possession of a valid, unrevoked adult-oriented business performer permit. (Ord. 07-009 § 3 (part), 2007)