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 residents and businesses
within the city. 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 nor 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. 3601 §
2, 2000)
For the purpose of this chapter the
words and phrases shall have the same meanings respectively ascribed
to them by this section:
Adult-oriented businesses.
“Adult-oriented businesses” means any one of
the following:
1.
Adult Arcade. The term “adult
arcade” as used in this chapter, is an establishment where,
for any form of consideration, one or more still or motion picture
projectors, or similar machines, for viewing by five or fewer persons
each, are used to show films, computer generated images, motion pictures,
video cassettes, slides or other photographic reproductions 30 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.
2.
“Adult bookstore,” “adult
novelty store” or “adult video store” means a commercial
establishment which, as a regular and substantial course of conduct,
offers for sale or rental for any form of consideration any one or
more of the following:
a.
Books, magazines, periodicals or
other printed matter, or photographs, films, motion pictures, video
cassettes or video reproductions, any material in digital format (including,
but not limited to, compact disc (CD) or digital video disc (DVD)),
slides, or other visual representations which are distinguished or
characterized by an emphasis upon the depiction or description of
specified sexual activities or specified anatomical areas;
b.
Instruments, devices, or paraphernalia,
except for clothing, which are designed for use in connection with
specified sexual activities, or
c.
Matter that, because of its sexually
explicit nature, may, pursuant to state law, be offered only to persons
over the age of 18 years.
3.
Adult Cabaret. The term “adult
cabaret” as used in this chapter, means a nightclub, restaurant,
or similar business establishment which: (1) regularly features live
performances which are distinguished or characterized by an emphasis
upon the display of specified anatomical areas or specified sexual
activities; and/or (2) which regularly features persons who appear
nude or semi-nude; and/or (3) shows films, computer generated images,
motion pictures, video cassettes, slides, or other photographic reproductions
30 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.
4.
Adult Hotel/Motel. The term “adult
hotel/motel” as used in this chapter, means a hotel or motel
or similar business establishment offering public accommodations for
any form of consideration which, (1) provides patrons with closed-circuit
television transmissions, films, computer generated images, motion
pictures, video cassettes, slides, or other photographic reproductions
30 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 (2) rents, leases, or
lets any room for less than a six-hour period, or rents, leases, or
lets any single room more than twice in a 24-hour period.
5.
Adult Motion Picture Theater. The
term “adult motion picture theater” as used in this chapter,
is a business establishment, not an adult arcade, where, for any form
of consideration, films, computer generated images, motion pictures,
video cassettes, slides or similar photographic reproductions are
shown, and 30 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.
6.
Adult Theater. The term “adult
theater” as used in this chapter, means a theater, concert hall,
auditorium, or similar establishment which, for any form of consideration
regularly features live performances which are distinguished or characterized
by an emphasis on the display of specified anatomical areas or specified
sexual activities.
7.
Modeling Studio. The term “modeling
studio” as used in this chapter, means a business which provides,
for pecuniary 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-oriented business operator.
“Adult-oriented business operator” (hereinafter
“operator”) means a person who supervises, manages, inspects,
directs, organizes, controls or in any other way is responsible for
or in charge of the premises of an adult-oriented business or the
conduct or activities occurring on the premises thereof.
Applicant.
A person who is required to file an application for a permit
under this chapter, including an individual owner, managing partner,
officer of a corporation, or any other operator, manager, employee,
or agent of an adultoriented business.
Church.
The term “church” as used in this chapter is
a structure or leased portion of a structure which is used primarily
for religious worship and related religious activities.
Child or family-oriented business.
The term “child or family-oriented business”
means a business establishment which has as its primary clientele
children or families with children, such as, but not limited to, toy
stores, children’s clothing stores, family amusement arcades,
or family recreation facilities.
Distinguished or characterized by an emphasis upon.
As used in this chapter, the term “distinguished or
characterized by an emphasis upon” shall mean and refer to the
dominant or essential theme of the object described by such phrase.
For instance, when the phrase refers to films “which are distinguished
or characterized by an emphasis upon” the depiction or description
of specified sexual activities or specified anatomical areas, the
films so described are those whose dominant or predominant character
and theme are the depiction of the enumerated sexual activities or
anatomical areas. See Pringle v. City of Covina, 115 Cal.App.3d 151
(1981).
Figure model.
“Figure model” means any person who, for pecuniary
compensation, consideration, hire or reward, poses in a modeling studio
to be observed, sketched, painted, drawn, sculptured, photographed
or otherwise depicted.
Health officer.
That person designated by the city manager as the health
officer of the City of Roseville.
Nudity or a state of nudity.
“Nudity or a state of nudity” means the showing
of the human male or female genitals, pubic area, or buttocks with
less than a fully opaque covering, the showing of the female breast
with less than a fully opaque covering of any part of the nipple or
areola.
Operate an adult-oriented business.
As used in this article “operate an adult-oriented
business” means the supervising, managing, inspecting, directing,
organizing, controlling or in any way being responsible for or in
charge of the conduct of activities of an adult-oriented business
or activities within an adult-oriented business.
Permittee.
“Permittee” means the person to whom an adult-oriented
business permit is issued.
Person.
Any individual, partnership, co-partnership, firm, association,
joint stock company, corporation, limited liability company or combination
of the above in whatever form or character.
Police chief.
The police chief of the City of Roseville or the authorized
representatives thereof.
The phrase “regular and substantial course of conduct”
shall be construed with reference to all relevant factors,
including but not limited to the following:
1.
The business devotes more than 30
percent of its retail inventory (not measured by the number of items
but rather by the cost to the business owner of the inventory) to
merchandise distinguished or characterized by an emphasis upon specified
sexual activities or specified anatomical areas.
2.
The business devotes more than 30
percent of the retail floor area to merchandise that is distinguished
or characterized by an emphasis upon specified sexual activities or
specified anatomical areas.
3.
The retail value of merchandise that
is distinguished or characterized by an emphasis upon specified sexual
activities or specified anatomical areas exceeds 30 percent of the
total retail value of inventory offered in any of the following categories:
(a) books, (b) magazines, (c) video tapes or any material in digital
format (including, but not limited to, compact disc (CD) or digital
video disc (DVD)), for sale or rental, (d) novelties and devices,
and (e) on-premises viewing of images, films, and or videos.
4.
Gross revenue derived from merchandise
in any category set forth in subsection (N)(3) of this section exceeds
30 percent of the total gross revenue for the category.
There is a rebuttable presumption
that a business constitutes an adult bookstore, adult novelty store
or adult video store where the business (1) offers or advertises merchandise
that is distinguished or characterized by an emphasis upon specified
sexual activities or specified anatomical areas as set forth in subsection
(A)(2) of this section and (2) fails to make revenue and inventory
related business records available to the city upon reasonable advance
notice.
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Regularly features.
The term “regularly features” with respect to
an adult theater or adult cabaret means a regular and substantial
course of conduct. The fact that live performances which are distinguished
or characterized by an emphasis upon the display of specified anatomical
areas or specified sexual activities occurs on two or more occasions
within a 30-day period; three or more occasions within a 60-day period;
or four or more occasions within a 180-day period, shall to the extent
permitted by law be deemed to be a regular and substantial course
of conduct.
School.
The term “school” as used in this chapter, is
an institution of learning for minors, whether public or private,
offering a regular course of instruction, such as, but not limited
to, those courses of study required by the California
Education Code,
or any child or day care facility. This definition includes a nursery
school, kindergarten, elementary school, middle or junior high school,
senior high school, or any special institution of education, but it
does not include a vocational or professional institution of higher
education, including a community or junior college, college, or university.
Semi-nude.
A state of dress in which clothing covers no more than the
genitals, pubic region, buttocks, areola of the female breast, as
well as portions of the body covered by supporting straps or devices.
Specified anatomical areas.
As used herein, “specified anatomical areas”
mean and include any of the following: less than completely and opaquely
covered human:
1.
Genitals or pubic region;
3.
Female breast below a point immediately
above the top of the areola.
Specified sexual activities.
As used herein, “specified sexual activities”
mean and include any of the following, whether performed directly
or indirectly through clothing or other covering:
1.
The fondling or other erotic touching
of human genitals, pubic region, buttocks, anus, or female breast;
2.
Sex acts, actual or simulated, including
intercourse, oral copulation, or sodomy;
3.
Masturbation, actual or simulated;
4.
Excretory functions as part of or
in connection with any of the other activities described in subdivision
(1) through (3) of this subsection.
(Ord. 3601 §
2, 2000)
It is unlawful for any person to
engage in, conduct or carry on, or to permit to be engaged in, conducted
or carried on, in or upon any premises in the City of Roseville the
operation of an adult-oriented business unless the person first obtains
and continues to maintain in full force and effect an adult-oriented
business permit from the City of Roseville as herein required.
(Ord. 3601 §
2, 2000)
Every person who proposes to establish,
maintain, operate or conduct an adult-oriented business in the City
of Roseville shall file an application with the police chief upon
a form provided by the City of Roseville and shall pay a filing fee,
as established by resolution adopted by the city council from time
to time, which shall not be refundable.
(Ord. 3601 §
2, 2000)
The police chief shall deny the application
for any of the following reasons:
A. The applicant, his or her employee, agent,
partner, director, officer, shareholder or manager has knowingly made
any false, misleading or fraudulent statement of material fact in
the application for an adult-oriented business permit.
B. An applicant is under 18 years of age.
C. The required application fee has not been
paid.
D. The adult-oriented business does not comply with the Zoning Ordinance locational standards, Roseville Municipal Code Section
19.32.030.
Each adult-oriented business permit
shall expire one year from the date of issuance, and may be renewed
only by filing with the police chief a written request for renewal,
accompanied by the annual permit fee and a copy of the permit to be
renewed. The request for renewal shall be made at least 30 days before
the expiration date of the permit. When made less than 30 days before
the expiration date, the expiration of the permit will not be stayed.
Applications for renewal shall be acted on as provided herein for
action upon applications for permits.
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(Ord. 3601 §
2, 2000)
An adult-oriented business permit
may be suspended or revoked in accordance with the procedures and
standards of this section.
A. On determining that grounds for permit
revocation exist, the police chief shall furnish written notice of
the proposed suspension or revocation to the permittee. Such notice
shall set forth the time and place of a hearing, and the ground or
grounds upon which the hearing is based, the pertinent code sections,
and a brief statement of the factual matters in support thereof. The
notice shall be mailed, postage prepaid, addressed to the last known
address of the permittee, or shall be delivered to the permittee personally,
at least 10 days prior to the hearing date. Hearings shall be conducted
in accordance with procedures established by the police chief, but
at a minimum shall include the following:
1. All parties involved shall have a right to offer testimonial, documentary, and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The police chief’s decision may be appealed in accordance with Section
9.11.120.
B. A permittee may be subject to suspension
or revocation of his permit, or be subject to other appropriate disciplinary
action, for any of the following causes arising from the acts or omissions
of the permittee, or an employee, agent, partner, director, stockholder,
or manager of an adult-oriented business:
1. The permittee has knowingly made any false,
misleading or fraudulent statement of material facts in the application
for a permit, or in any report or record required to be filed with
the city.
2. The permittee, employee, agent, partner,
director, stockholder, or manager of an adult-oriented business has
knowingly allowed or permitted, and has failed to make a reasonable
effort to prevent the occurrence of any of the following on the premises
of the adult-oriented business:
a.
Any act of unlawful sexual intercourse,
sodomy, oral copulation, or masturbation;
b.
Use of the establishment as a place
where unlawful solicitations for sexual intercourse, sodomy, oral
copulation, or masturbation openly occur;
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 prohibited by this chapter.
3. Failure to abide by any disciplinary action
previously imposed by an appropriate city official.
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:
2. Suspension of the permit for a specified
period not to exceed six months;
3. Revocation of the permit.
(Ord. 3601 §
2, 2000)
After denial of an application by
the police chief for an adult-oriented business regulatory permit,
or after denial of renewal of a permit, or suspension or revocation
of a permit, the applicant or person to whom the permit was granted
may appeal such action to the city council by filing an appeal on
a standard form provided by the city clerk within 10 days from the
date of denial, suspension or revocation. The appeal shall specify
the action being appealed and shall state specific grounds for the
appeal. If the denial, suspension or revocation is affirmed on review
by the city council, the applicant, permittee may seek prompt judicial
review of such administrative action pursuant to California Code of
Civil Procedure Section 1094.8. The city shall make all reasonable
efforts to expedite judicial review.
(Ord. 3601 §
2, 2000)
Every permittee of an adult-oriented
business which provides live entertainment depicting specified anatomical
areas or involving specified sexual activities must maintain a register
of all persons so performing on the premises and their permit numbers.
Such register shall be available for inspection during regular business
hours by any police, health or code enforcement officer of the City
of Roseville.
(Ord. 3601 §
2, 2000)
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.
(Ord. 3601 §
2, 2000)
An applicant or permittee shall permit
representatives of the police department, health department, fire
department, planning department, building division, or other city
departments or divisions 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 or she refuses
to permit such lawful inspection of the premises at any time it is
occupied or open for business.
(Ord. 3601 §
2, 2000)
The provisions of this chapter regulating
adult-oriented businesses are not intended to be exclusive and compliance
therewith shall not excuse noncompliance with any other regulations
pertaining to the operation of businesses as adopted by the city council
of the City of Roseville.
(Ord. 3601 §
2, 2000)
All persons who possess an outstanding
business license heretofore issued for the operation of an adult-oriented
business, must apply for and obtain such a permit within 90 days of
the effective date of the ordinance codified in this chapter. Failure
to do so and continued operation of an adult-oriented business, or
the continued performances depicting specified anatomical areas or
specified sexual activities in an adult-oriented business after such
time without a permit shall constitute a violation of this chapter.
(Ord. 3601 §
2, 2000)
Any person that violates any provision
of this chapter shall be guilty of a separate offense for each and
every day during any portion of which any such person commits, continues,
permits, or causes a violation thereof, and shall be punished accordingly.
(Ord. 3601 §
2, 2000)
Any use or condition caused or permitted to exist in violation of any of the provisions of this chapter shall be and is hereby declared a public nuisance and may be summarily abated by the city pursuant to Chapter
10.54 of the Roseville Municipal Code.
(Ord. 3601 §
2, 2000)
Any person who violates, causes,
or permits another person to violate any provision of this chapter
commits a misdemeanor.
(Ord. 3601 §
2, 2000)
The violation of any provision of
this chapter shall be and is hereby declared to be contrary to the
public interest and shall, at the discretion of the city, create a
cause of action for injunctive relief.
(Ord. 3601 §
2, 2000)
In addition to the civil remedies
and criminal penalties set forth above, any person that violates the
provisions of this chapter may be subject to administrative remedies,
as set forth by city ordinance.
(Ord. 3601 §
2, 2000)