It is the purpose and intent of this article to regulate the
operations of adult businesses, which tend to have judicially recognized
adverse secondary effects on the community, including, but not limited
to, increases in crime in the vicinity of adult businesses; decreases
in property values in the vicinity of adult businesses; increases
in vacancies in residential and commercial areas in the vicinity of
adult businesses; interference with residential property owners' enjoyment
of their properties when such properties are located in the vicinity
of adult businesses as a result of increases in crime, litter, noise,
and vandalism; and the deterioration of neighborhoods. Special regulation
of these businesses is necessary to prevent these adverse secondary
effects and the blighting or degradation of the neighborhoods in the
vicinity of adult businesses while at the same time protecting the
First Amendment rights of those individuals who desire to own, operate
or patronize adult businesses.
It is, therefore, the purpose of this article to establish reasonable
and uniform operational standards for adult businesses.
(Ord. No. 2007-05 § 4, 3-21-07)
In addition to any other definitions contained in the Municipal
Code, the following words and phrases shall, for the purpose of this
chapter be defined as follows, unless it is clearly apparent from
the context that another meaning is intended. Should any of the definitions
be in conflict with any current provision of the Municipal Code, these
definitions shall prevail.
shall mean a business establishment to which the public is
permitted or invited and where coin, card or slug operated or electronically,
electrically or mechanically controlled devices, still or motion picture
machines, projectors, videos, holograms, virtual reality devices or
other image-producing devices are maintained to show images on a regular
or substantial basis, where the images so displayed are distinguished
or characterized by an emphasis on matter depicting or describing
specified sexual activities or specified anatomical areas. Such devices
shall be referred to as adult arcade devices.
shall mean a business establishment having as a regular and
substantial portion of its stock in trade, adult-oriented material.
shall mean a partitioned or partially enclosed portion of
an adult business used for any of the following purposes:
Where a live or taped performance is presented or viewed, where
the performances and/or images displayed or presented are distinguished
or characterized by their emphasis on matter depicting, describing,
or relating to specified sexual activities or specified anatomical
areas;
Where adult arcade devices are located.
shall mean:
A business establishment or concern that as a regular and substantial
course of conduct operates as an adult retail store, adult motion
picture theater, adult arcade, adult cabaret, adult motel or hotel,
adult modeling studio; or
A business establishment or concern which as a regular and substantial
course of conduct offers, sells or distributes adult-oriented material
or sexually oriented merchandise, or which offers to its patrons materials,
products, merchandise, services or entertainment characterized by
an emphasis on matters depicting, describing, or relating to specified
sexual activities or specified anatomical areas but not including
those uses or activities which are preempted by state law.
shall mean a business establishment (whether or not serving
alcoholic beverages) that features adult live entertainment.
shall mean any person who is an employee or independent contractor
of an adult cabaret or adult business and who, with or without any
compensation or other form of consideration, performs as a sexually
oriented dancer, exotic dancer, stripper, go-go dancer or similar
dancer whose performance on a regular and substantial basis focuses
on or emphasizes the adult cabaret dancer's breasts, genitals, and/or
buttocks, but does not involve exposure of specified anatomical areas
or depicting or engaging in specified sexual activities. Adult cabaret
dancer does not include a patron.
shall mean a hotel or motel that is used for presenting on
a regular and substantial basis images through closed circuit television,
cable television, still or motion picture machines, projectors, videos,
holograms, virtual reality devices or other image-producing devices
that are distinguished or characterized by the emphasis on matter
depicting or describing or relating to specified sexual activities
or specified anatomical areas.
shall mean any physical human body activity, whether performed
or engaged in, alone or with other persons, including but not limited
to singing, walking, speaking, dancing, acting, posing, simulating,
wrestling or pantomiming, in which: (1) the performer (including but
not limited to topless and/or bottomless dancers, go-go dancers, exotic
dancers, strippers, or similar performers) exposes to public view,
without opaque covering, specified anatomical areas; and/or (2) the
performance or physical human body activity depicts, describes, or
relates to specified sexual activities whether or not the specified
anatomical areas are covered.
shall mean a business establishment which provides for any
form of consideration, the services of a live human model, who, for
the purposes of sexual stimulation of patrons, displays specified
anatomical areas to be observed, sketched, photographed, filmed, painted,
sculpted, or otherwise depicted by persons paying for such services.
Adult modeling studio does not include schools maintained pursuant
to standards set by the Board of Education of the State of California.
shall mean a business establishment, with or without a stage
or proscenium, where, on a regular and substantial basis and for any
form of consideration, material is presented through films, motion
pictures, video cassettes, slides, laser discs, digital video discs,
holograms, virtual reality devices, or similar electronically-generated
reproductions that is characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
shall mean accessories, paraphernalia, books, magazines,
laser discs, compact discs, digital video discs, photographs, prints,
drawings, paintings, motion pictures, pamphlets, videos, slides, tapes,
holograms or electronically generated images or devices including
computer software, or any combination thereof that is distinguished
or characterized by its emphasis on matter depicting, describing or
relating to specified sexual activities or specified anatomical areas.
Adult-oriented material shall include sexually oriented merchandise.
shall mean any of the following:
The opening or commencement of any adult business (as defined
above) as a new business;
The conversion of an existing business, whether or not an adult
business, to any adult business;
The addition of any adult business to any other existing adult
business;
The relocation of any adult business; or
Physical changes that expand the square footage of an existing
adult business by more than 10%.
shall mean any of the following: (1) the sole proprietor
of an adult business; (2) any general partner of a partnership that
owns and operates an adult business; (3) the owner of a controlling
interest in a corporation or L.L.C. that owns and operates an adult
business; or (4) the person designated by the officers of a corporation
or the members of an L.L.C. to be the license holder for an adult
business owned and operated by the corporation.
shall mean a person who is an employee or independent contractor
of an adult business or any other person who, with or without any
compensation or other form of consideration, provides adult live entertainment
for patrons of an adult business.
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 sadomasochistic activity
or distinguished or characterized by their emphasis on matter depicting,
describing or relating to specified sexual activities or specified
anatomical areas.
shall mean and include any of the following:
shall mean and include any of the following, irrespective
of whether performed directly or indirectly through clothing or other
covering:
Human genitals in a state of sexual stimulation or arousal;
and/or
Acts of human masturbation, sexual stimulation or arousal; and/or
Use of human or animal ejaculation, sodomy, oral copulation,
coitus or masturbation; and/or
Masochism, erotic or sexually oriented torture, beating, or
the infliction of pain, or bondage and/or restraints; and/or
Human excretion, urination, menstruation, vaginal or anal irrigation;
and/or
Fondling or other erotic touching of human genitals, pubic region,
buttock, or the female breast.
(Ord. No. 2007-05 § 4, 3-21-07)
All adult businesses are subject to the adult business regulatory
license requirements of this chapter as well as all other applicable
ordinances of the city and laws of the State of California.
(a)
It shall be unlawful for any person to establish, operate, engage in, conduct, or carry on any adult business within the City of Escondido unless the person first obtains, and continues to maintain in full force and effect, an adult business regulatory license as herein required. Any occurrence of the establishment of an adult business as defined in Chapter 16E, Article 1, Section 16E-2 of this code, shall require a new application for an adult business regulatory license. The adult business regulatory license shall be subject to the development and operational standards of this chapter and the underlying zone where the facility is located.
(b)
The
planning commission shall grant, deny and renew adult business regulatory
licenses in accordance with these regulations.
(c)
License
applicants shall file a written, signed and verified application on
a form provided by the planning department. Such application shall
contain the following information and be accompanied by the following
documents:
(1)
If the license applicant is an individual, the individual shall state
his or her legal name, including any aliases, and address, and shall
submit satisfactory written proof that he or she is at least 18 years
of age.
(2)
If the license applicant is a partnership, the partners shall state
the partnership's complete name, address, the names of all partners,
and whether the partnership is general or limited; and shall attach
a copy of the partnership agreement, if any.
(3)
If the license applicant is a corporation, the corporation shall
provide its complete name, the date of its incorporation, evidence
that the corporation is in good standing under the laws of the State
of California, the names and capacities of all officers and directors,
the name of the registered corporate agent, and the address of the
registered office for service of process.
(4)
A signed and verified statement that the license applicant, if an
individual, or partners, officers, directors, if a partnership or
corporation, has not pled guilty or nolo contendere or been convicted
of an offense classified by this or any other state as a sex or sex-related
offense and (A) more than two years have elapsed since the date of
conviction or the date of release from confinement of conviction to
the date of application, whichever is the later date, if the conviction
is a misdemeanor; or (B) more than five years have elapsed since the
date of conviction or the date of release from confinement of conviction
to the date of application, whichever is the later date, if the conviction
is a felony; or (C) more than five years have elapsed since the date
of the last conviction or the date of release from confinement for
the 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 24 month period.
(5)
The license applicant shall sign the application. All persons who
sign the application must also provide names, aliases, addresses,
and date of birth.
(6)
If the license applicant intends to operate the adult business under
a name other than that of the license applicant, the license applicant
shall file the fictitious name of the adult business and show proof
of registration of the fictitious name.
(7)
A description of the type of adult. business for which the license
is requested and the proposed address where the adult business will
operate, plus the names and addresses of the owners and lessors of
the adult business site.
(8)
The address to which notice of action on the application is to be
mailed.
(9)
A sketch or diagram showing the interior configuration of the premises,
including a statement of the total floor area occupied by the adult
business. The sketch or diagram need not be professionally prepared
but must be oriented to the north or some other designated street
or object and 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.
(10)
A diagram of the off-street parking areas and entries and exits to
the premises of the adult business, also showing the location of the
lighting system required by this chapter.
(d)
The
completed application shall be accompanied by a nonrefundable application
fee. The amount of such fees shall be set periodically by resolution
of the city council.
(e)
The
completeness of an application for an adult business regulatory license
shall be determined by the director of community development or his
or her designee within five city business days of its submittal. If
the director of community development or his or her designee determines
that the license application is incomplete, the director of community
development or his or her designee shall immediately notify in writing
the license applicant of such fact and the reasons therefor, including
any additional information necessary to render the application complete.
Such writing shall be deposited in the U.S. mail, postage prepaid,
immediately upon determination that the application is incomplete.
Within five city business days following the receipt of an amended
application or supplemental information, the director of community
development or his or her designee shall again determine whether the
application is complete in accordance with the provisions set forth
above. Evaluation and notification shall occur as provided herein
until such time as the application is found to be complete.
(f)
The
fact that a license applicant possesses other types of state or city
licenses does not exempt the license applicant from the requirement
of obtaining an adult business regulatory license.
(Ord. No. 2007-05 § 4, 3-21-07)
(a)
Upon
receipt of a completed application and payment of the application
and license fees, the director of community development shall immediately
write or stamp the application "received" and, in conjunction with
city staff, shall promptly investigate the information contained in
the application to determine whether an adult business regulatory
license shall be granted. Investigation shall not be grounds for the
city to unilaterally delay in reviewing a completed application, nor
is it grounds to extend the time period to conduct a hearing pursuant
to this section.
(b)
Within
21 days of receipt of the completed application, the investigation
shall be completed and the planning commission shall notice and conduct
a public hearing with notice of such hearing to be made pursuant to
California Government Code Sections 65091 and 65905.
(c)
In
reaching a decision on the application, the planning commission shall
not be bound by the formal rules of evidence in the California Evidence
Code.
(d)
The planning commission shall render a written decision on the application for an adult business regulatory license within two city business days of the public hearing required by this section. The failure of the planning commission to render any decision within the time frames established in any part of this section shall be deemed to constitute an approval, subject to appeal to the city council, pursuant to section 16E-8. The decision of the planning commission shall be hand delivered or mailed to the applicant at the address provided in the application, and shall be provided in accordance with the requirements of this code.
(e)
Notwithstanding
any provisions in this section regarding the occurrence of any action
within a specified period of time, the applicant may request additional
time beyond that provided for in this section or may request a continuance
regarding any decision or consideration by the city of the pending
application. Extensions of time sought by applicants shall not be
considered delay on the part of the city or constitute failure by
the city to provide for prompt decisions on applications.
(f)
The
planning commission shall grant or deny the application in accordance
with the provisions of this section, and so notify the applicant as
follows:
(1)
The planning commission shall write or stamp "granted" or "denied"
on the application and date and sign such notation.
(2)
If the application is denied, the planning commission shall attach
to the application a statement of the reasons for the denial.
(3)
If the application is granted, the planning commission shall attach
to the application an adult business regulatory license.
(g)
The planning commission shall grant the application and issue the adult business regulatory license upon findings that the proposed business meets, or will meet, all of the development and operational standards and requirements of this chapter, unless the application is denied based upon one or more of the criteria set forth in subsection (i) of this section.
(h)
If
the planning commission grants the application, the applicant may
begin operating the adult business for which the license was sought,
subject to strict compliance with the development and operational
standards and requirements of this chapter. The license holder shall
post the license conspicuously in the premises of the adult business.
(i)
The
planning commission shall deny the application if the applicant fails
to establish any of the following:
(1)
The adult business complies with the city's zoning requirements as
to its underlying zoning designation.
(2)
The adult business complies with the development, operational or
performance standards found in this chapter.
(3)
The license applicant is at least 18 years of age.
(4)
The required application fees have been paid.
(5)
The application complies with section 16E-3(c).
(j)
A
permittee, applicant or substantially related entity wherein the new
application is made by an individual or previous entity exercising
management or oversight or control of the adult facility, cannot reapply
for an adult business regulatory license for a particular location
within one year from the date of prior denial.
(Ord. No. 2007-05 § 4, 3-21-07)
(a)
Hours
of Operation. It shall be unlawful for any owner, operator, manager,
employee or independent contractor of an adult business to allow such
adult business to remain open for business, or to license 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 2:00 a.m. and 9:00 a.m. of
any day excepting herefrom an adult hotel/motel.
(b)
Exterior
Lighting Requirements. All exterior areas, including parking lots,
of the adult business shall be illuminated at a minimum of 1.50 foot-candle,
maintained and evenly distributed at ground level with appropriate
devices to screen, deflect or diffuse the lighting in such manner
as to prevent glare or reflected light from creating adverse impacts
on adjoining and nearby public and private properties. Inoperable
and/or broken lights shall be replaced within 24 hours.
(c)
Interior
Lighting Requirements. All interior areas of the adult business excepting
therefrom adult hotels/motels shall be illuminated at a minimum of
1.00 foot-candle, maintained and evenly distributed at floor level,
excepting herefrom the individual guest rooms of an adult hotel/motel.
Inoperable and/or broken lights shall be replaced within 24 hours.
(d)
On-Site
Manager. All adult businesses shall have a responsible person who
shall be at least 18 years of age or 21 years of age if liquor is
served at the adult business 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 or her name to the chief of police 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.
(e)
Security.
All adult businesses shall employ security guards 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 guard at all times while the business is open.
(2)
Security guard(s) shall be charged with preventing violations of
law and enforcing compliance by patrons of the requirements of these
regulations. Security guard(s) 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, ticket taker,
admittance person, adult business performer, or sole occupant of the
manager's station while acting as a security guard.
(f)
Interior
of Premises. No exterior door or window on the premises of an adult
business shall be propped or kept open at anytime while the business
is open and any exterior windows shall be covered with opaque coverings
at all times.
(g)
Displays of Adult Oriented Materials. All displays of materials characterized or distinguished on matters describing or relating to specified sexual activities or specified anatomical areas, as defined in Chapter 16E, Article 1, section 16E-2 of this code, shall be completely screened from public view as viewed from adjacent sidewalks or public rights-of-way.
(h)
Signs.
All adult businesses shall comply with the following sign requirements,
in addition to those of the Escondido Municipal Code. Should a conflict
exist between the requirements of the Escondido Municipal Code and
this subsection, the more restrictive provision shall prevail.
(1)
If an adult business does not serve alcohol, it shall post a notice
on the exterior side of any door used as an entrance to the establishment,
as well as inside the establishment within 10 feet of every entrance
used by customers for access to the establishment, stating that persons
below the age of 18 years of age are prohibited from entering onto
the premises or within the confines of the adult business. This notice
shall be posted on a wall in a place of prominence. The dimensions
of the notice shall be no less than six inches by six inches, with
a minimum typeface of letters not less than one inch in size. If the
adult business serves alcohol, it shall comply with all notice and
posting requirements of the Alcoholic Beverage Control Department.
(2)
No adult-oriented material shall be displayed in window areas or
any area where it would be visible from any location other than within
the confines of the adult business.
(3)
All adult businesses shall post a notice inside the establishment
within 10 feet of every entrance used by customers for access to the
establishment, stating that indecent exposure and masturbation are
prohibited on the premises. This notice shall be posted on a wall
in a place of prominence. The dimensions of the notice shall be no
less than six inches by six inches, with a minimum typeface of letters
not less than one inch in size.
(i)
Regulation
of Public Restroom Facilities. If the adult business provides restrooms
for patron use, it shall provide separate restroom facilities for
male and female patrons. The restrooms shall be free from adult-oriented
material. Only one person shall be allowed in each restroom at any
time, unless otherwise required by law, in which case the adult business
shall employ a restroom attendant of the same sex as the restroom
users who shall be present in the public portion of the restroom during
operating hours. The attendant shall ensure that no person of the
opposite sex is permitted into the restroom, and that not more than
one person is permitted to enter a restroom stall, unless otherwise
required by law, and that the restroom facilities are used only for
their intended sanitary purposes. Access to restrooms for patron use
shall not require passage through an area used as a dressing area
by performers.
(j)
Trash.
All interior trash cans shall be emptied into a single locked trash
bin lined with a plastic bag or with individually bagged trash at
least once a day. At least four times a day, the front and rear exteriors
of any adult business, along with the parking lot, shall be inspected
for trash and debris and any trash and debris found shall be immediately
removed and placed into a single locked trash bin lined with a plastic
bag.
(k)
Adult
Business Offering Adult Live Entertainment—Additional Operating
Requirements. The following additional requirements shall apply to
adult businesses providing adult live entertainment:
(1)
No person shall perform adult live entertainment for patrons of an
adult business except upon a permanently fixed stage at least 18 inches
above the level of the floor, and surrounded with a three foot high
barrier or by a fixed rail at least 30 inches in height. No patron
shall be permitted on the stage while the stage is occupied by a performer(s)
and/or adult cabaret dancer(s). This provision shall not apply to
an individual viewing area where the performer is completely separated
from the area in which the performer is viewed by an individual by
a permanent, floor to ceiling, solid barrier.
(2)
No performer or adult cabaret dancer shall be within six feet of
a patron, measured horizontally, while the performer or adult cabaret
dancer is performing adult live entertainment. While on stage, no
performer or adult cabaret dancer shall have physical contact with
any patron, and no patron shall have physical contact with any performer
or adult cabaret dancer.
(3)
As to off stage performances, no performer or adult cabaret dancer
shall perform adult live entertainment off stage. As to an adult cabaret
dancer performing off stage, a distance of at least six feet shall
be maintained between the adult cabaret dancer and the patron(s) at
all times. During off stage performances, no adult cabaret dancer
shall have physical contact with any patron, and no patron shall have
physical contact with any adult cabaret dancer.
(4)
In addition, while on the premises, no performer or adult cabaret
dancer shall have physical contact with a patron and no patron shall
have physical contact with a performer or adult cabaret dancer, 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 or off stage
performances by such performer or adult cabaret dancer. Patrons shall
be advised of the no touching requirements by signs and, if necessary,
by employees, independent contractors, performers, or adult cabaret
dancers of the establishment. This prohibition does not extend to
incidental touching.
(5)
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. And, if necessary, patrons shall also
be advised of the separation and no touching requirements by employees
or independent contractors of the establishment.
(6)
All employees and independent contractors of the adult facility,
except therefrom performers while performing on the fixed stage, while
on or about the premises or tenant space, shall wear at a minimum
an opaque covering which covers their specified anatomical areas.
(7)
Patrons shall not throw money to performers, place monies in the
performers' costumes or otherwise place or throw monies on the stage.
If patrons wish to pay or tip performers, payment or tips may be placed
in containers. Patrons shall be advised of these 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. If necessary, patrons shall also be advised
of the tipping and gratuity requirements by employees or independent
contractors of the adult business.
(8)
The adult business shall provide dressing rooms for performers that
are separated by gender and exclusively dedicated to the performers'
use and which the performers shall use. Same gender performers may
share a dressing room. Patrons shall not be permitted in dressing
rooms.
(9)
The adult business shall provide an entrance/exit to the establishment
for performers that is separate from the entrance/exit used by patrons,
which the performers shall use at all times.
(10)
The adult business shall provide access for performers between the
stage and the dressing rooms that is completely separated from the
patrons. If such separate access is not physically feasible, the adult
business shall provide a minimum three 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 capable
of (and which actually results in) preventing any physical contact
between patrons and performers and the patrons must also be three
feet away from the walk aisle. Nothing in this section is intended
to exempt the adult business from compliance with the provisions of
Title 24 of the California Code of Regulations pertaining to handicapped
accessibility.
(l)
Adult
Motion Picture Theater—Additional Operating Requirements. The
following additional requirements shall apply to adult motion picture
theaters:
(1)
If the theater contains a hall or auditorium area, the area shall
comply with each of the following provisions:
(A)
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;
(B)
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
(C)
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.
(2)
If an adult motion picture theater is designed to permit outdoor
viewing by patrons seated in automobiles, it shall have the motion
picture screen so situated, or the perimeter of the establishment
so fenced, that the material to be seen by those patrons may not be
seen from any public right-of-way, child day care facility, public
park, school, or religious institution or any residentially zoned
property occupied with a residence.
(Ord. No. 2007-05 § 4, 3-21-07)
(a)
A
license holder shall not operate an adult business under the authority
of an adult business license at any place other than the address of
the adult business stated in the application for the license.
(b)
In
the event of a transfer of ownership of the adult business, the new
owner shall be fully informed of the requirements of this chapter,
including the operational and development standards herein.
(c)
In
the event of a transfer of the adult business or the adult business
license, the transferee must provide the director of community development
with the following information within seven days of the transfer:
(1)
If the transferee is an individual, the individual shall state his
or her legal name, including any aliases, and address, and shall submit
satisfactory written proof that he or she is at least 18 years of
age.
(2)
If the transferee is a partnership, the partners shall state the
partnership's complete name, address, the names of all partners, and
whether the partnership is general or limited; and shall attach a
copy of the partnership agreement, if any.
(3)
If the transferee is a corporation or L.L.C., the entity shall provide
its complete name, the date of its incorporation or organization,
evidence that it is in good standing under the laws of the State of
California, the names and capacities of all officers and directors,
managers or members having supervisory or managerial control over
the facility, the name of the registered agent, and the address of
the registered office for service of process.
(4)
The transferee shall also provide a signed and verified statement
that the transferee, if an individual, or partners, officers, directors,
if a partnership or corporation, has not pled guilty or nolo contendere
or been convicted of an offense classified by this or any other state
as a sex or sex-related offense and (A) more than two years have elapsed
since the date of conviction or the date of release from confinement
of conviction to the date of application, whichever is the later date,
if the conviction is a misdemeanor; or (B) more than five years have
elapsed since the date of conviction or the date of release from confinement
of conviction to the date of application, whichever is the later date,
if the conviction is a felony; or (C) more than five years have elapsed
since the date of the last conviction or the date of release from
confinement for the 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 24 month
period.
(Ord. No. 2007-05 § 4, 3-21-07)
(a)
On
determining that grounds for license suspension or revocation exist,
the planning commission shall furnish written notice of the proposed
suspension or revocation to the license holder. 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 municipal 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 license holder, or shall be delivered to the license
holder personally, at least 10 days prior to the hearing date. Hearings
pursuant to this section shall be noticed in accordance with Government
Code Sections 65091 and 65905 conducted by the city planning commission
or its designee, including a third party hearing officer. Hearings
pursuant to this section shall be conducted in accordance with procedures
established by the planning commission but, at a minimum, shall include
the following:
(1)
All parties involved shall have the right to offer testimonial, documentary,
and tangible evidence bearing upon the issues and may be represented
by counsel.
(2)
The planning commission shall not be bound by the formal rules of
evidence.
(3)
Any hearing under this section may be continued for a reasonable
time for the convenience of a party or a witness at the request of
the license holder. Extensions of time or continuances sought by a
license holder shall not be considered delay on the part of the city
or constitute failure by the city to provide for prompt decisions
on license suspensions or revocations.
(b)
A
license may be suspended or revoked based on the following causes
arising from the acts or omissions of the license holder, or an employee,
independent contractor, partner, director, or manager of the license
holder:
(1)
The building, structure, equipment, or location used by the adult business fails to comply with all provisions of these regulations and this section relating to adult businesses, including the adult business operational standards contained in section 16E-5 above and the zoning requirements of Chapter 33, and all other applicable building, fire, electrical, plumbing, health, and zoning requirements of the Escondido Municipal Code.
(2)
The license holder has failed to obtain or maintain all required
city licenses.
(3)
The license holder has made any false, misleading, or fraudulent
statement of material fact in the application for an adult business
license.
(4)
The license is being used to conduct an activity different from that
for which it was issued.
(5)
That an individual employed by, or performing in, the adult business
(whether classified as an employee or independent contractor) has
been convicted of two or more sex-related offenses that occurred in
or on the licensed premises within a 12 month period and was employed
by, or performing in, the adult business at the time the offenses
were committed.
(6)
That the use for which the approval was granted has ceased to exist
or has been suspended for six months or more.
(7)
That the transferee/new owner of an adult business or adult business
license failed to comply with the requirements of this chapter.
(8)
The license holder, partner, director, or manager has knowingly allowed
or permitted, or has failed to make a reasonable effort to prevent
the occurrence of any of the following on the premises of the adult
business; or a licensee has been convicted of violating any of the
following state laws on the premises of the adult 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,
318 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 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.
(G)
An act or omission in violation of any of the requirements of this
chapter if such act or omission is with the knowledge, authorization,
or approval of the license holder or is as a result of the license
holder's negligent supervision of the employees or independent contractors
of the adult facility. This includes the allowance of activities that
are or become a public nuisance, including but not limited to the
disruptive conduct of business patrons whether on or immediately off
the premises where such patrons disturbing the peace, obstructing
traffic, damaging property, engaging in criminal conduct, violating
the law and otherwise impairing the free enjoyment of life and property.
(c)
After
holding the hearing in accordance with the provisions of this section,
if the planning commission finds and determines that there are grounds
for suspension or revocation, the planning commission shall impose
one of the following:
(d)
In
the event a license is revoked pursuant to this section, another adult
business license to operate an adult business shall not be granted
to the licensee or an entity related to the licensee within 12 months
after the date of such revocation.
(Ord. No. 2007-05 § 4, 3-21-07)
(a)
After
approval, denial, suspension or revocation of a license, any affected
person may appeal the decision to the city council in writing within
10 days after the written decision.
(b)
Consideration
of an appeal of the decision shall be at a public hearing, notice
of which shall be given pursuant to California Government Code Sections
65091 and 65905 and which hearing shall occur within 30 days of the
filing or initiation of the appeal.
(c)
The
city council action on the appeal of the decision shall be by a majority
vote of the members present and upon the conclusion of the de novo
public hearing, the city council shall grant or deny the appeal. The
city council's decision shall be final and conclusive and shall be
rendered in writing within four city business days of the hearing,
such written decision to be mailed to the party appealing the planning
commission's decision.
(d)
In
reaching its decision, the city council shall not be bound by the
formal rules of evidence.
(e)
Notwithstanding
any provisions in this section regarding the occurrence of any action
within a specified period of time, the applicant may request additional
time beyond that provided for in this section or may request a continuance
regarding any decision or consideration by the city of the pending
appeal. Extensions of time sought by applicants shall not be considered
delay on the part of the city or constitute failure by the city to
provide for prompt decisions on applications.
(f)
Failure
of the city council to render a decision to grant or deny an appeal
of a license denial within the time frames established by this section
shall be deemed to constitute an approval of the adult business license.
(g)
The
time for a court challenge to a decision of the city council is governed
by California Code of Civil Procedure Section 1094.8.
(h)
Notice
of the city council's decision and its findings shall elude citation
to California Code of Civil Procedure Section 1094.8.
(i)
Any
applicant or license holder whose license has been denied pursuant
to this section shall be afforded prompt judicial review of that decision
as provided by California Code of Civil Procedure Section 1094.8.
(Ord. No. 2007-05 § 4, 3-21-07)
(a)
Employees/Independent
Contractors. Employees and independent contractors of an adult business
must be at least 18 years of age. It shall be unlawful for any owner,
operator, manager, partner, director, officer, shareholder with a
10% or greater interest, employees, or other person in charge of any
adult business to employ, contract with, or otherwise retain any services
in connection with the adult business with or from any person who
is not at least 18 years of age. If liquor is served at the adult
business, employees and independent contractors of the adult business
must be at least 21 years of age. If liquor is served at the adult
business, it shall be unlawful for any owner, operator, manager, partner,
director, officer, shareholder with a 10% or greater interest, employee,
or other person in charge of any adult business to employ, contract
with, or otherwise retain any services in connection with the adult
business with or from any person who is not 21 years of age. And said
persons shall exercise reasonable care in ascertaining the true age
of persons seeking to contract with, be employed by, or otherwise
service the adult business.
(b)
Patrons.
Patrons of an adult business must be at least 18 years of age. It
shall be unlawful for any owner, operator, manager, partner, director,
officer, shareholder with a 10% or greater interest, employee, independent
contractor, or other person in charge of any adult business to permit
to enter or remain within the adult business any person who is not
at least 18 years of age. If liquor is served at the adult business,
patrons must be at least 21 years of age. If liquor is served at the
adult business, it shall be unlawful for any owner, operator, manager,
partner, director, officer, shareholder with a 10% or greater interest,
employee, independent contractor, or other person in charge of any
adult business to permit to enter or remain within the adult business
any person who is not at least 21 years of age. And said persons shall
exercise reasonable care in ascertaining the true age of persons entering
the adult business.
(c)
X-Rated
Movies. The selling, renting and/or displaying of x-rated movies,
videotapes, digital video discs (DVDs), compact discs (CDs) and laser
discs shall be restricted to persons over 18 years of age. If an establishment
that is not otherwise prohibited from providing access to the establishment
to persons under 18 years of age sells, rents, or displays movies,
videos, DVDs, or laser discs that have been rated "X" or rated "NC-17"
by the motion picture rating industry ("MPAA"), or which have not
been submitted to the MPAA for a rating, and which consist of images
that are distinguished or characterized by an emphasis on depicting
or describing specified sexual activities or specified anatomical
areas, said movies, videos, DVDs, CDs, and laser discs shall be located
in a specific section of the establishment where these items are not
visible to persons under the age of 18 and from which persons under
the age of 18 shall be prohibited.
(Ord. No. 2007-05 § 4, 3-21-07)
Each owner, operator, manager, employee or independent contractor
of an adult business or other person in charge of an adult business
shall permit representatives of the police department, health department,
fire department, planning department, license and code services division
and other city departments, to inspect the adult business for the
purpose of insuring compliance with the laws and operating standards
applicable to adult businesses at any time it is occupied or open
for business. Such inspections shall be conducted in a reasonable
manner.
(Ord. No. 2007-05 § 4, 3-21-07)
