Note: Prior ordinance history: Ords. 1866-77 and 2295-89.
(a) 
The purpose of this chapter is to provide standards and guidelines to regulate the time, place and manner of the operation of adult businesses in order to minimize the negative secondary impacts associated with such businesses, as identified in the legislative findings made in connection with the adoption of this chapter, and promote the health, safety and general welfare.
(b) 
It is neither the intent nor the effect of this chapter to impose limitations or restrictions on the content of any communicative materials. Likewise, it is neither the intent nor effect of this chapter to restrict or deny access by adults to adultoriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult-oriented entertainment to their intended market.
(c) 
Nothing in this chapter is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which otherwise violates any city ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness or obscene or harmful matter or the exhibition, distribution or display thereof.
(Ord. 2658-01 § 2)
(a) 
For the purpose of this chapter, unless the context clearly requires a different meaning, the words, terms and phrases set forth shall have the meanings given them in this section.
"Adult arcade"
means an establishment where, for any form of consideration, one or more motion picture projectors, television monitors, computer generated display or similar devices, for viewing by five or fewer persons each, are used to show films, computer generated images with or without the use of virtual reality accessories, motion pictures, video cassettes, slides or other photographic reproductions, of which thirty percent or more are distinguished or characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomical areas."
"Adult bookstore"
means an establishment that has thirty percent or more of its stock in books, magazines, periodicals or other printed matter, or of photographs, films, motion pictures, video cassettes, slides, tapes, records or other form of visual or audio representations which are distinguished or characterized by an emphasis upon the depiction or description of "specified sexual activities" and/or "specified anatomical areas."
"Adult business"
means:
(A) 
Any adult or sexually oriented business, including any business establishment that regularly features live performances which are distinguished or characterized by an emphasis upon the depiction or exposure of "specified anatomical areas" and/or "specified sexual activities,"
(B) 
Any business whose primary purpose is the sale or display of matter that, because of its sexually explicit nature, may, pursuant to state law or other regulatory authority, be offered only to persons over the age of eighteen years.
(C) 
Any business which operates as adult arcade, adult bookstore, adult cabaret, adult hotel/motel, adult motion picture theater, adult visual materials or video store, adult modeling studio, or adult entertainment enterprise, as defined herein.
(D) 
Any business establishment having thirty percent or more of its actual display area devoted to, or stock in trade for sale or rental to the public consisting of, "adult merchandise" as defined herein.
"Adult business operator"
means a person in an ownership or employee capacity who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for, or in charge of, the premises of an adult business or the conduct or activities occurring on the premises thereof.
"Adult business owner"
means a person or persons who hold a financial or other business interest, in whole or in part, either singly or jointly, in an adult business. For purposes of this chapter, indicia of ownership may be established by evidence including, but not limited to, business license information, fictitious business name registration, utility billing information, or by other competent evidence. For purposes of this chapter, the person whose name appears on the business license application as the business owner shall be deemed to be an adult business owner.
"Adult cabaret"
means a building or portion thereof or area regularly featuring the presentation or exhibition of live performers whose performances are distinguished or characterized by an emphasis on matter depicting; describing or relating to "specified sexual activities" or "specified anatomical areas," or whose performances are rendered in a state of nudity.
"Adult entertainment enterprise"
means any business activity wherein: (i) is furnished for a fee or charge or other like consideration the opportunity to paint, feel, handle, touch, be in the presence of, be entertained by, be painted by, felt by, or touched by, another person who is semi-nude or in a state of nudity, or to observe, view, or photograph such activity, or (ii) a fee or charge or like consideration is paid or received for goods sold or services rendered by or in the presence of one or more persons who is semi-nude or in a state of nudity. "Adult entertainment enterprise" shall include, but not be limited to, the following business activities and activities similar thereto: adult or nude encounter studios, adult or nude dance studios, nude exhibitions, peep shows, wrestling centers, adult or nude art or photograph studios or erotic lingerie shows.
"Adult entertainment room"
means any room located in an adult business establishment which constitutes an adult cabaret, adult motion picture theater, adult entertainment enterprise, or adult theater, or adult visual materials store pursuant to this section.
"Adult hotel/motel"
means a hotel or motel or similar business establishment offering public accommodations for any form of consideration that provides patrons with closed-circuit television transmissions, films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomical areas;" and has any of the following characteristics:
(A) 
Rents, leases, or lets any room for less than a six hour period, or
(B) 
Advertises or otherwise promotes the availability of the above described accommodations.
"Adult merchandise"
shall mean sexually oriented implements, paraphernalia, or novelty items, such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually-oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity or distinguished or characterized by their emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas.
"Adult modeling studio"
means a business which provides, for any form of compensation, monetary or other consideration, hire or reward, figure models who, for the purposes of sexual stimulation of patrons, display "specified anatomical areas to be observed, sketched, photographed, painted, sculpted or otherwise depicted by persons paying such consideration. "Modeling studio" does not include schools maintained pursuant to standards set by the State Board of Education. "Modeling studio" further does not include a studio or similar facility owned, operated, or maintained by an individual artist or group of artists, and which does not provide, permit, or make available "specified sexual activities."
"Adult motion picture theater"
means a building or portion thereof or area, open or enclosed, used for the presentation on more than one-third of the days in a calendar year during which motion picture films, video cassettes, digital video discs (DVD), cable television or any other such visual media are displayed or exhibited, of films, video cassettes, cable television or other visual media which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas," for observation by patrons or customers. "Adult motion picture theater" does not include any room or suite of rooms rented for human occupancy in a hotel or motel which is equipped or furnished with a video cassette player, digital video disc (DVD) player, or cable television, unless such hotel or motel is determined to be an "adult hotel/motel" as defined herein.
"Adult visual materials or video store"
means a building or portion thereof used by an establishment having thirty percent or more of its actual display area devoted to; or stock in trade for sale or rental to the public or any segment thereof consist of books, magazines, other publications, films, video cassettes, digital video disc (DVD), or any combination thereof which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas."
"Applicant"
means a person who is required to file an application for a license under this chapter, including an individual owner, managing partner, officer of a corporation, or any other operator, manager, employee, or agent of an adult business.
"Distinguished or characterized by an emphasis upon"
means or refers to the dominant or essential theme of the object described by such phrase.
"Employee"
means every owner, partner, supervisor, performer, dancer, waitress, bartender, bouncer, manager, food service worker, cashier, custodial or maintenance person or other worker, whether paid or not, who renders services of any nature in the conduct of an adult business establishment. For purposes of this chapter, it shall be a rebuttable presumption that every person who renders services of any nature in the conduct of an adult business is an employee of the adult business.
"Entertainer"
means any person, performer or dancer, whether an employee or independent contractor, or any person who, with or without any compensation or other form of consideration, performs live entertainment for patrons of an adult business.
"Licensee"
means the person to whom an adult business license is issued.
"Nudity or a state of nudity"
means the display of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering; the display of any portion of the female breast below the top of the areola with less than a fully opaque covering; the exposure of any device, costume or covering which gives the appearance of or simulates human male or female genitals, pubic area, buttocks, or female nipple and areola.
"Operate an adult business"
means the supervising, managing, inspecting, directing, organizing, controlling or in any way being responsible for or in charge of the conduct of activities of an adult business or activities within an adult business.
"Person"
is any individual, firm, association, partnership, copartnership, corporation, limited liability corporation, joint stock company, joint venture or combination of the above in whatever form or character.
"Public safety department" or "department of public safety"
means the city of Sunnyvale department of public safety, which is responsible for all law enforcement functions within the jurisdiction of the city, including, but not limited to, responsibility for administration and enforcement of the provisions of this chapter. "Director of public safety" is the head or chief of the department of public safety. The director of public safety may designate an individual to perform functions specified in this chapter as the responsibility of the director.
"Regularly features"
with respect to an adult business means a regular and substantial course of conduct. The presentation in or at any building or portion thereof, of live performances which are distinguished or characterized by an emphasis upon the display of "specified sexual activities" or "specified anatomical areas" on two or more occasions within a thirty day period; three or more occasions within a sixty day period; or four or more occasions within a one-hundred-eighty-day period, shall be deemed to be a regular and substantial course of conduct.
"Specified anatomical areas"
shall mean and include human male and female genitals, pubic region or buttocks, and the nipple or areola of the female breast.
"Specified sexual activities"
shall mean and include any of the following, whether performed directly or indirectly through clothing or other covering:
(A) 
Human genitals in a state of sexual stimulation or arousal;
(B) 
Sexual acts, actual or simulated, including sexual intercourse, oral copulation or sodomy; and
(C) 
Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast;
(D) 
Masturbation, actual or simulated;
(E) 
Excretory functions as part of or in connection with any of the other activities described in subdivisions (A) through (D) of this subsection; and
(F) 
Masochism, erotic or sexually-oriented torture, beating, or the infliction of pain in the context of sexual arousal.
(b) 
The foregoing definitions are generic. The uses and businesses governed by subsection (a) include any other use or business, regardless of how named or advertised, that is of a character like or similar to the uses and businesses set forth in subsection (a).
(Ord. 2658-01 § 2)
This chapter does not apply to any of the following activities:
(a) 
Any activity of a person licensed to practice one or more of the healing arts pursuant to Division 2 of the California Business and Professions Code, if and to the extent that such activity is authorized by such license;
(b) 
Any activity conducted or sponsored by any school district or other public agency; so long as such activity is being conducted as part of and within the scope of an authorized and regular part of the curriculum or is part of a training or instructional program being conducted by a public agency.
(c) 
Any activity conducted by a person pursuant to any license issued by the state of California or any agency thereof charged with the responsibility of licensing, prescribing standards for and supervising such activity or profession, if and to the extent that such activity is conducted within the course and scope of the exercise of the privileges authorized by such license, or the duties of such agency;
(d) 
Any activity as to which a license to operate a massage establishment or a license to act as a massage therapist or massage therapist trainee is required pursuant to Chapter 9.41 of this code.
(Ord. 2658-01 § 2)
(a) 
It is unlawful for any person to engage in, conduct, or carry on or permit to be engaged in, conducted or carried on, in or upon any premises within the city the operation of an adult business unless the person first obtains and continues to maintain in full force and effect a license issued by the director of public safety as required by this chapter.
(b) 
A license shall be issued to any applicant who has met all conditions under this chapter and complied with all of the following requirements:
(1) 
The applicant has filed a completed application and paid the adult business application fee required;
(2) 
The applicant has not made a material misstatement in the application;
(3) 
The establishment, including the building and lot or portion thereof where the establishment is located or is proposed to be situated meets all location and zoning requirements of Title 19.
(4) 
There does not exist a basis for denial as set forth in Section 9.40.070;
(5) 
The applicant has submitted a statement that within the last five years the applicant has not failed to comply with a final court order or administrative action of an investigatory agency finding a violation of applicable federal, state and local wage and hour laws, including, but not limited to, the Federal Fair Labor Standards Act, the California Labor Code, and any local minimum wage ordinance or prevailing wage requirements. For purposes of this subsection, a final court order or administrative action is one as to which there is no pending appeal and the time for filing an appeal has passed.
(c) 
Each application for a license shall be accompanied by a nonrefundable fee in an amount established by resolution of the city council. The application fee shall be used to defray, in part, administrative costs incurred in the processing of the application, and is not made in lieu of any other fees or taxes required under this code. Renewal fees also shall be established by resolution of the city council. Renewal applications shall update any changed information.
(Ord. 265801 § 2; Ord. 3133-18 § 4)
(a) 
Any person who proposes to operate, maintain or conduct an adult business in the city shall first submit to the director of public safety a completed application for an adult business license on a form provided by the city containing the information set forth in this section, and payment of the required nonrefundable application fee. An application which is not accompanied by the required application fee shall not be deemed a complete application.
(b) 
If the applicant is an individual, the individual shall provide his or her legal name, address, and submit satisfactory written proof that he or she is at least eighteen years of age.
(c) 
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.
(d) 
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.
(e) 
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.
(f) 
If the applicant intends to operate the adult business under a name other than that of the applicant, the applicant shall file the fictitious name of the adult business and show proof of registration of the fictitious name.
(g) 
Each application shall contain:
(1) 
A narrative description of the proposed adult business for which the license is requested, which shall include hours of operation, number of employees and entertainers and description of titles and/or positions.
(2) 
A detailed diagram showing the interior floor plan and configuration of the premises, depicting all interior rooms including restrooms, office space, storage areas, and public areas, and dimensions. The diagram need not be professionally prepared, but shall be drawn to a designated scale with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.
(3) 
A site plan showing the lot or property on which the adult business will be located, the location of the building or portion thereof in which the adult business will be located, the number of available parking spaces, the location and type of available and proposed lighting, landscaping, trash enclosures, and all means of ingress and egress to and from the property. The site plan need not be professionally prepared, but shall be drawn to scale with marked dimensions to an accuracy of plus or minus one foot.
(4) 
An area map showing the lot or property on which the adult business will be located, and the property line(s) of any other property containing an adult business located within one thousand feet of the property subject to the license application, and the property line(s) of any church, school, park, or residential zoning district located within one thousand feet of the property subject to the license application.
(5) 
The full name, address and telephone number of the property owner and/or property management company if different from the applicant, a copy of the lease agreement in effect at the time of the application, and a copy of any other agreements, easements, conditions, covenants, restrictions or other such documents that contain evidence affecting the use or operation of the lot, property, premises or structures which will be subject to the license for which the application has been submitted.
(6) 
The name, current residential address, position and/or title of each employee and/or entertainer and all other information required pursuant to Section 9.40.220.
(h) 
Each application shall also contain the following information about the applicant:
(1) 
Full name, including any aliases, current residential address, telephone number, date of birth, height, weight, color of eyes and hair;
(2) 
Social security number, and driver's license or California identification card number;
(3) 
The previous address of each applicant for a period of three years immediately prior to the date of application and the dates of residence on each;
(4) 
Written proof that the applicant is at least eighteen years of age:
(5) 
Business, occupation or employment history of the applicant for three years immediately preceding the date of the application;
(6) 
Two recent passport-style color photographs;
(7) 
Fingerprints filed at the department of public safety.
(i) 
Such other information as may be deemed necessary by the director of public safety to secure the foregoing information
(j) 
An adult business establishment lawfully existing and operating on the effective date of this chapter, if it does not have a valid license, shall apply for a license within ninety days therefrom and shall be allowed to continue operating during the pendency of the application, provided it is otherwise in compliance with applicable provisions of this code.
(Ord. 2658-01 § 2)
(a) 
Upon receipt of a completed application and payment of the application fees, the application shall be immediately stamped as received by the department of public safety.
(b) 
Within thirty days of receipt of the completed application, the director of public safety shall conduct and complete an investigation of the information contained in the application to determine whether the applicant shall be issued an adult business license in accordance with the provisions of this chapter, and notify the applicant as follows:
(1) 
The director shall write or stamp "Granted" or "Denied" on the application and date and sign such notation.
(2) 
If the application is denied, the director shall attach to the application a statement pursuant to Section 9.40.070 of the reasons for denial.
(3) 
If the application is granted, the director shall attach to the application an adult business license.
(4) 
The application as granted or denied and the license, 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 director of public safety shall grant the application and issue the adult business license upon finding that the proposed business meets the location and zoning requirements of Title 19 and that the applicant has complied with the requirements of Section 9.40.040.
(d) 
If the director of public safety fails to either grant or deny the application within thirty days of receipt of a completed application, the applicant may begin operating as an adult business pursuant to the requirements of this chapter.
(Ord. 265801 § 2)
(a) 
Within thirty days of receipt of a completed application and payment of fees, the director shall deny an application for a license upon making any of the following findings:
(1) 
The lot or property on which the adult business is or is proposed to be located does not comply with the location or zoning requirements Title 19;
(2) 
The applicant, an employee, agent, partner, director, officer, shareholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for an adult business license;
(3) 
The applicant, an employee, agent, partner, director, officer, shareholder or manager has been convicted of any of the conduct set forth in Section 9.40.100(c) and failed to disclose such conviction;
(4) 
Within one year prior to the date of the application, the applicant or any of the following persons has had a license issued pursuant to this chapter revoked;
(5) 
Within the last five years, the applicant has failed to comply with a final court order or administrative action of an investigatory agency finding a violation of applicable federal, state and local wage and hour laws, including, but not limited to, the Federal Fair Labor Standards Act, the California Labor Code, and any local minimum wage ordinance or prevailing wage requirements. For purposes of this subsection, a final court order or administrative action is one as to which there is no pending appeal and the time for filing an appeal has passed.
(A) 
Any officer or director of the applicant, or any stockholder holding more than five percent of the corporate stock of the applicant, if the applicant is a corporation;
(B) 
Any general or limited partner of the applicant, if the applicant is a partnership;
(C) 
Any person currently employed by the adult business establishment.
(b) 
The decision to deny the application shall be given to the applicant in writing, setting forth specifically the ground or grounds upon which the decision is based, the pertinent code section or sections, and a brief statement of the factual matters in support thereof. The decision shall be mailed, postage prepaid, addressed to the applicant at the last known address of the applicant, or it may be personally delivered to the applicant.
(Ord. 2658-01 § 2; Ord. 3133-18 § 4)
(a) 
Appeal to City Manager. The applicant may appeal the denial to the city manager. The appeal must be submitted within fifteen days of the date the notice of decision is deposited in the mail or delivered to the applicant, whichever occurs first. The appeal shall be in writing and shall set forth, with reasonable particularity, the grounds for the appeal.
(b) 
Hearing on Appeal. The city manager shall set a time and place for the hearing on the appeal not less than ten days nor more than sixty days from the date the appeal was received by the city manager. Notice of the time and place of the hearing shall be sent to the applicant not less than ten days prior to the hearing.
(c) 
Disposition of Appeal. No later than ten business days following the conclusion of the hearing, the city manager shall issue a written notice of decision. The city manager may refer the matter back to the director for a new investigation and decision, or may affirm or reverse the decision.
(d) 
Judicial Review. The decision of the city manager shall be final and notice of the decision shall be mailed or personally delivered to the applicant . The applicant may seek prompt judicial review of the city manager's decision pursuant to California Code of Civil Procedure Section 1094.8, which shall be referenced on the notice of decision.
(Ord. 2658-01 § 2)
An applicant whose application for a license has been denied may reapply for such license after a period of not less than one year has elapsed from the date such denial was deposited in the mail or received by the applicant, whichever occurs first; provided, however, that an earlier reapplication may be made if accompanied by evidence that the ground or grounds for denial of the application no longer exist.
(Ord. 2658-01 § 2)
A licensee may be subject to suspension or revocation of a license issued pursuant to this chapter, or be subject to other appropriate disciplinary action, for any of the following grounds arising from the acts or omissions of the licensee, or an employee, agent, partner, director, stockholder, or manager of an adult business:
(a) 
The licensee has knowingly made any false, misleading or fraudulent statement of material facts in the application for a license, or in any report or record required to be filed with the city;
(b) 
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;
(c) 
The licensee, employee, agent, partner, director, stockholder, or manager of the adult business has knowingly allowed or permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the adult business establishment:
(1) 
Any unlawful act of sexual intercourse, sodomy, oral copulation, or masturbation,
(2) 
The use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation or masturbation openly occur,
(3) 
Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code,
(4) 
The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Section 315, 316, or 318 or Subdivision (b) of Section 647 of the California Penal Code;
(5) 
Any conduct constituting a criminal offense of which an essential element consists of use of force or violence which is a violation of Section 187, 192, 203, 207, 209, 211, 240, or 242 of the California Penal Code;
(6) 
Any act constituting a felony involving the sale, use, possession, or possession for sale of any controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code;
(d) 
Failure to abide by any disciplinary action previously imposed by the appropriate city officer;
(e) 
Failure to comply with the requirements set forth in Chapter 9.38 or with one or more of the facilities and operations requirements set forth in Section 9.40.160. "Failure to comply" means the failure to take appropriate corrective measures within a reasonable period of time, or a pattern of repeated violations at different times, as determined by the director of public safety;
(f) 
The existence of the condition of the premises as hazardous or unsafe for human occupancy;
(g) 
If the applicant has failed to comply with a final court order or administrative action of an investigatory agency finding a violation of applicable federal, state and local wage and hour laws, including, but not limited to, the Federal Fair Labor Standards Act, the California Labor Code, and any local minimum wage ordinance or prevailing wage requirements. For purposes of this subsection, a final court order or administrative action is one as to which there is no pending appeal and the time for filing an appeal has passed.
(Ord. 2658-01 § 2; Ord. 3133-18 § 4)
Upon determining that grounds for license suspension or revocation exist, the director of public safety shall furnish written notice of the proposed suspension or revocation to the licensee. Such notice shall set forth the time and place of a hearing, and the ground or grounds upon which the hearing is based, the pertinent code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the licensee and/or shall be delivered to the licensee personally, at least ten days prior to the hearing date.
(Ord. 2658-01 § 2)
(a) 
The noticed hearing shall be conducted by the director of public safety, unless the director is unavailable, in which case the hearing shall be conducted by any other management level person designated by the city manager.
(b) 
All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing on the issues, to be represented by counsel, and to confront and cross-examine witnesses. Any relevant evidence may be admitted if it is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.
(c) 
A hearing noticed pursuant to this chapter may be continued at the request of either party for a reasonable time for the convenience of a party or a witness, and if continued to a date certain need not be renoticed.
(d) 
No later than ten business days following the conclusion of the hearing, the director of public safety shall issue a written notice of decision, to include a statement of findings in support of the decision, which shall be one of the following:
(1) 
A warning;
(2) 
Suspension of the license for a specified period not to exceed six months;
(3) 
Revocation of the license.
(e) 
The decision shall be mailed, postage prepaid, to the licensee at the last known address of the licensee or delivered personally to the licensee.
(Ord. 2658-01 § 2)
(a) 
Appeal to City Manager. The licensee may appeal the decision to the city manager. The appeal must be submitted within fifteen days from the date the notice of decision is deposited in the mail or delivered to the licensee, whichever occurs first. The appeal shall be in writing and shall set forth, with reasonable particularity, the grounds for the appeal.
(b) 
Hearing on Appeal. The city manager shall schedule a time and place for the hearing on the appeal to take place not less than ten days and not more than sixty days from the date the appeal was received by the city manager. Notice of the time and place of the hearing shall be sent to the licensee not less than ten days prior to the hearing.
(c) 
Disposition of Appeal. No later than ten business days following the conclusion of the hearing, the city manager shall issue a written notice of decision. The city manager may refer the matter back to the director of public safety for a new investigation and decision, or may affirm or reverse the decision. may dismiss the disciplinary action, or may impose any discipline provided in Section 9.40.120(d).
(d) 
Judicial Review. The decision of the city manager shall be final and notice of the decision shall be mailed or personally delivered to the licensee. The licensee may seek prompt judicial review of the city manager's decision pursuant to California Code of Civil Procedure Section 1094.8, which shall be referenced on the notice of decision.
(Ord. 2658-01 § 2)
No refund or rebate of a license fee shall be allowed by reason of the fact that the licensee discontinues an activity for which a license is required pursuant to this chapter, or that the license is suspended or revoked.
(Ord. 2658-01 § 2)
In the event that a license is canceled, suspended, revoked, or invalidated, the licensee shall forward it to the director of public safety not later than the end of the third business day after notification of such cancellation, suspension, revocation, or invalidation.
(Ord. 2658-01 § 2)
All adult business establishments subject to the provisions of this chapter shall comply with the following facilities and operations requirements.
(a) 
Code Compliance. Each adult business establishment shall comply with all building, fire, electrical, plumbing, health and zoning requirements of this code, all state and federal requirements of a similar nature which are customarily enforced by the city, and all provisions of this chapter.
(b) 
Activities and Displays. No adult 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) 
Exterior Lighting. All off-street parking areas and premises entries of the adult 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 business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct. The lighting shall be shown on the required sketch or diagram of the premises.
(d) 
Noise. Noise generated inside the premises shall not be audible on adjacent property or the public right-of-way or within another building or other separate unit within the same complex such that the noise constitutes a nuisance. Whenever, upon notice and hearing, it is determined that noise from an establishment constitutes a nuisance, the director of public safety may require the premises to be soundproofed, in accordance with Title 16 and Title 19 of this code, to eliminate or reduce the noise to a reasonable level, balancing the interests of and hardship to the respective parties.
(e) 
Hours of Operation. With the exception of adult businesses existing as of January 1, 2001, any adult business subject to this chapter shall close and remain closed from midnight to nine a.m. the following day.
(f) 
Signage. The building entrance to an adult business shall be clearly and legibly posted with a notice indicating that minors are precluded from entering the premises. The notice shall be constructed and posted to the satisfaction of the director of public safety. No person under the age of eighteen years shall be permitted within the premises of an adult business at any time. An adult business may establish an older minimum age requirement (e.g., twenty-one years) and post signs accordingly.
(g) 
Interior Visibility All indoor areas of the adult business within which patrons are permitted, except rest rooms, shall be open to view and accessible by the management at all times.
(h) 
Partitions. No adult business shall be partitioned or divided into any private booth or cubicle accessible to limited numbers of patrons of the establishment and shielded from view of other persons within the establishment.
(i) 
Adult Arcades—Special Provisions. In addition, any adult business which is or contains 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 surveillance, broadcast or reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be direct line of sight from the manager's station.
(2) 
The view area specified in subsection (1) shall remain unobstructed by any doors, walls, partitions or room dividers. Where there is partial blockage of some portions of the interior areas by retail shelving or merchandise displays, this requirement can be satisfied by the use of mirrors or rearrangement of layout to ensure the maximum, feasible degree of surveillance by management of all areas within the premises. 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 remain in the common area of such business, other than the restrooms, who are not actively engaged in shopping for or reviewing the products available on display for purchaser viewing. Signs prohibiting loitering shall be posted in prominent places in and near the video booths.
(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 license to conduct the adult-oriented business.
(j) 
Interior Lighting. All areas of the adult business shall be illuminated at a minimum of the following foot-candles, minimally maintained and evenly distributed at ground level:
Area or Type of Use
Foot-Candles
Bookstores and other retail establishments
20
Theaters and cabarets
5 (except during performances, during which lighting shall be at least 1.25 foot-candles)
Arcades
10
Adult Motels/Hotels
20 (in public areas)
Modeling studios
20
(k) 
Restrooms. If public restrooms are provided, the adult 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 maintained free from any adult material. Rest rooms shall not contain video, television or computer display monitors, or video surveillance, recording or reproduction equipment.
(l) 
Live Entertainment—Special Provisions. The following additional requirements shall pertain to adult businesses providing live entertainment depicting "specified anatomical areas" or involving "specified sexual activities:"
(1) 
With the exception of adult businesses existing as of January 1, 2001, no person shall perform live entertainment for patrons of an adult business except upon a stage at least eighteen inches above the level of the floor, which is separated by a distance of at least eighteen inches from any area occupied by patrons, and no patron shall be permitted within eighteen inches of the stage while the entertainer is performing. Without exception, no person shall perform live entertainment for patrons of any all-nude adult business unless separated by a distance of at least eighteen inches from any area occupied by patrons.
(2) 
The adult business shall provide separate dressing room facilities for entertainers that are exclusively dedicated to the entertainers' use. No cameras or other surveillance devices shall be installed or maintained by the adult business owner or operator in the dressing room facilities for the purpose of broadcasting or projecting images for viewing by the patrons of the establishment or for broadcasting or projecting images over the Internet.
(3) 
Any new adult business shall provide access for entertainers between the stage and the dressing rooms which is completely separated from the patrons. In an adult business existing as of January 1, 2001, if such separate access is not physically feasible, the adult business shall provide a minimum three foot wide walk aisle for entertainers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the entertainers capable of, and which actually results in, preventing any physical contact between patrons and entertainers. Alternatively, in an existing adult business where it is not feasible to provide a separate access or walk aisle, a nonperforming employee of the adult business shall ensure that there is no physical contact between an entertainer and any patron between the dressing room area and the stage.
(4) 
No entertainer, before, during or after performances, shall have physical contact with any patron and no patron shall have physical contact with any entertainer before, during or after performances by such entertainer. This subsection shall only apply to physical contact on the premises of the adult business, and is intended to prohibit conduct such as "lap dancing," "hair draping," or "leg wrapping" or other similar activities involving physical contact between any entertainer and a patron. This subsection is not in any way intended to limit or restrict the entertainer's performance on stage.
(5) 
No patron shall directly pay or give any gratuity to any entertainer by placing such gratuity on the body or in the clothing of the entertainer. Acceptable tipping practices include hand-to-hand, before, during or immediately after a performance as well as placing tips on a stage during a performance. An adult business existing as of January 1, 2001, with a preexisting "tips-to-the-hips" policy may continue such a practice.
(m) 
Adult businesses shall employ security staff in order to maintain the public peace and safety, based upon the following standards:
(1) 
Adult businesses featuring live entertainment shall provide at least one security staff person at all times while the business is open. If the number of patrons in the premises is greater than thirty-five persons, an additional security person shall be on duty. Security staff must be management level employees or staff for whom security is a primary duty. Nothing in this subsection shall be construed to authorize the licensee to exceed maximum occupancy limits established in conformance with building codes.
(2) 
Security staff for adult businesses other than live entertainment may be required if the director of public safety determines that their presence is necessary in order to prevent any of the conduct listed in Section 9.40.100 from occurring on the premises.
(3) 
Security staff shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. Security staff shall be uniformed in such a manner so as to be readily identifiable as a security person by the public, or shall wear shirts, name tags or other uniform clothing clearly identifying them as security employees of the adult business.
(n) 
The requirements of this section shall be deemed conditions of adult business regulatory approvals, and failure to comply with every such requirement shall be grounds for suspension or revocation of the license issued pursuant to these regulations. Failure to comply with these regulations does not constitute a criminal offense.
(Ord. 2658-01 § 2)
(a) 
The applicant shall authorize and allow entry by public officials of the city into the premises wherein the applicant proposes to operate an adult business establishment for the purpose of conducting one or more inspections to determine whether the establishment complies with all applicable building, fire, electrical, plumbing, health and zoning requirements of this code, all state and federal requirements of a similar nature which are customarily enforced by the city, and the provisions of this chapter.
(b) 
Any and all investigating officials of the city shall have the right to enter adult entertainment establishments from time to time during regular business hours to make reasonable inspections to observe and enforce compliance with building, fire, plumbing, zoning, or health regulations or provisions of this chapter. Where a building, fire, electrical, plumbing, or health violation is noted, as appropriate under the circumstances, an opportunity to correct the violation may be provided.
(c) 
A person who operates an adult business or his or her agent or employee shall be deemed to be in violation of the provisions of this chapter if he or she refuses to permit a lawful inspection of the premises at any time it is occupied or open for business.
(Ord. 2658-01 § 2)
It is unlawful to operate an adult business establishment under any name or conduct business under any designation not specified in the license.
(Ord. 2658-01 § 2)
No license issued pursuant to the provisions of this chapter shall be assigned or transferred in any manner, nor shall any person other than those mentioned in such license engage in the enterprise for which the license is issued. As used herein, "transfer" shall include, but not be limited to, any modification of a business entity operating an enterprise, or otherwise required to be disclosed pursuant to Section 9.40.050, including transfer of more than ten percent of the stock of any corporation.
(Ord. 2658-01 § 2)
The owner or operator of an adult business establishment at all times shall display the license in an open and conspicuous place on the premises.
(Ord. 2658-01 § 2)
(a) 
As a further condition of approval of every adult business license issued pursuant to this chapter, every licensee shall register every employee and entertainer, whether full or part time, permanent or temporary, including but not limited to each and every performer, dancer, bartender, bouncer, manager, food or beverage order taker or server, food service worker, cashier, custodial or maintenance person with the department of public safety within five business days of the commencement of the employee's or entertainer's period of employment or engagement at the adult business establishment.
(b) 
Each licensee shall be responsible for providing the following information about each employee and entertainer to the department of public safety on a form provided by the department:
(1) 
Full name, current residential address, telephone number;
(2) 
Date of birth, height, weight, color of eyes and hair.
(3) 
Driver's license or California identification card number.
(4) 
Stage name (if applicable) and other aliases used within the previous two years.
(c) 
At the discretion of the director of public safety, each employee and entertainer may be required to provide two recent color passport quality photographs and shall allow himself or herself to be fingerprinted at the department of public safety for purposes of identification.
(d) 
The information provided for purposes of this section shall be maintained by the department of public safety as confidential information, and shall not be disclosed as public records unless pursuant to subpoena issued by a court of competent jurisdiction.
(e) 
Failure to register each employee and entertainer within five days of the commencement of employment or engagement shall be deemed a violation of the conditions of the license and may be considered grounds for suspension or revocation of the license.
(Ord. 2658-01 § 2)
(a) 
Each operator of an adult business subject to the provisions of this chapter, and legally doing business on the effective date of this chapter, shall apply for a license not later than ninety days therefrom unless it is currently licensed, and shall comply with all requirements which are prerequisites for issuance of a license before such license will issue, except as provided in subsection (b).
(b) 
With respect to an adult business existing on January 1, 2001, which as of that date constituted a legal nonconforming use pursuant to Title 19 of this code, a license shall not be denied solely on the grounds that the adult business fails to comply with the provisions of Chapter 19.60 concerning the permitted location of adult business uses.
(c) 
With respect to an adult business existing on January 1, 2001, which as of that date had entered into an agreement with the city of Sunnyvale concerning certain aspects of the facilities or operation of the adult business, a license shall not be denied or revoked solely on the grounds that the adult business was not in full compliance with the requirements of this chapter, particularly those set forth in Section 9.40.160, provided that the adult business was otherwise in compliance with the terms of that agreement, and where the points of discrepancy with the requirements of this chapter were specifically the subject of that agreement. If the provisions of the agreement are more stringent than the provisions of this chapter, the provisions of the agreement apply.
(d) 
An adult business existing as of January 1, 2001 may relocate to another site within the city in compliance with the location requirements set forth in Chapter 19.60, yet retain the exemptions set forth in Section 9.40.160 for existing businesses, so long as the new location is approved by the city, the establishment is under the same business ownership, and the relocation will not result in more than a twenty-five percent increase over the square footage of the existing establishment, unless otherwise approved by the council.
(Ord. 2658-01 § 2)
The provisions of this chapter regulating adult businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the city council.
(Ord. 2658-01 § 2)
If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this chapter or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.
(Ord. 2658-01 § 2)