It is the purpose and intent of this chapter 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 chapter to establish reasonable
and uniform operational standards for adult businesses.
(Ord. NS-761 § 3, 2005)
In addition to any other definitions contained in this code, the following words and phrases shall, for the purpose of this chapter and Chapters
11.28 and
21.43 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 provisions of this code, these definitions shall prevail.
"Adult arcade"
means 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."
"Adult booth/individual viewing area"
means a partitioned or partially enclosed portion of an adult
business used for any of the following purposes:
1.
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";
2.
Where "adult arcade devices" are located.
"Adult business"
means:
1.
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
2.
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.
"Adult cabaret"
means a business establishment (whether or not serving alcoholic
beverages) that features "adult live entertainment."
"Adult cabaret dancer"
means 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.
"Adult hotel/motel"
means a "hotel" or "motel" (as defined in this code) 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."
"Adult live entertainment"
means 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.
"Adult modeling studio"
means 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.
"Adult motion picture theater"
means 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 disks, digital video disks,
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."
"Adult oriented material"
means accessories, paraphernalia, books, magazines, laser
disks, compact discs, digital video disks, 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."
"Adult retail store"
means a business establishment having as a regular and substantial
portion of its stock in trade, "adult oriented material."
"Establishment of an adult business"
means any of the following:
1.
The opening or commencement of any "adult business" (as defined
above) as a new business;
2.
The conversion of an existing business, whether or not an "adult
business," to any "adult business";
3.
The addition of any "adult business" to any other existing "adult
business";
4.
The relocation of any "adult business"; or
5.
Physical changes that expand the square footage of an existing
"adult business" by more than 10%.
"Owner/license holder"
means 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.
"Performer"
means 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.
"Sexually oriented merchandise"
means 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."
"Specified anatomical areas"
means and includes any of the following:
1.
Less than completely and opaquely covered, and/or simulated
to be reasonably anatomically correct, even if completely and opaquely
covered human:
c.
Female breasts below a point immediately above the top of the
areola; or
2.
Human male genitals in a discernibly turgid state, even if completely
or opaquely covered.
"Specified sexual activities"
means and includes any of the following, irrespective of
whether performed directly or indirectly through clothing or other
covering:
1.
Human genitals in a state of sexual stimulation or arousal;
and/or
2.
Acts of human masturbation, sexual stimulation or arousal; and/or
3.
Use of human or animal ejaculation, sodomy, oral copulation,
coitus or masturbation; and/or
4.
Masochism, erotic or sexually oriented torture, beating, or
the infliction of pain, or bondage and/or restraints; and/or
5.
Human excretion, urination, menstruation, vaginal or anal irrigation;
and/or
6.
Fondling or other erotic touching of human genitals, pubic region,
buttock, or female breast.
(Ord. NS-761 § 3, 2005)
All adult businesses are subject to the adult business license
requirements of this chapter as well as all other applicable ordinances
of the city and laws of the State of California.
It shall be unlawful for any person to establish, operate, engage in, conduct, or carry on any adult business within the City of Carlsbad unless the person first obtains, and continues to maintain in full force and effect, an adult business license as herein required. Any "establishment of an adult business" as defined in Section
8.60.020 of this chapter shall require a new application for an adult business license. The adult business license shall be subject to the development and operational standards of this chapter and the regulations of the zoning district in which the facility is located.
If the license applicant is a corporation or L.L.C., the applicant
shall provide its complete name, the date of its organization, evidence
that the entity is in good standing under the laws of the State of
California, the names and capacities of all officers, directors and
individuals with managerial control over the facility, the name of
the registered agent, and the address of the registered officer or
member for service of process.
(Ord. NS-761 § 3, 2005)
A. An application
for an adult business license shall include a signed and verified
statement made by the applicant that the license applicant, if an
individual, or by all of the partners, officers, directors, if an
L.L.C., partnership or corporation, declaring that none of them has
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 (1)
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
(2) 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 (3) 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.
B. The adult business owner/license holder shall annually submit a signed and verified statement and processing fee to the Chief of Police declaring that there has been no change with respect to the owner/license holder having within this state or any other state: (1) pled guilty or nolo contendere of a sex or sex-related offense, or (2) been convicted of a sex or sex-related offense. Any plea of guilty or nolo contendere to or conviction of a sex or sex-related offense may be grounds for suspension or revocation of the adult business license, subject to Section
8.60.090 of this chapter.
(Ord. NS-761 § 3, 2005; Ord. CS-062 § III, 2009)
A. The
completeness of an application for an adult license shall be determined
by the Chief of Police within five working days of its submittal.
If the Chief of Police determines that the license application is
incomplete, the Chief of Police 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 working days following the receipt of an amended application
or supplemental information, the Chief of Police 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.
B. Upon
receipt of a completed application and payment of the application
and license fees, the Chief of Police 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 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.
C. Within
30 days of receipt of the completed application, the Chief of Police
shall issue or deny the license.
D. In reaching
a decision, the Chief of Police shall not be bound by the formal rules
of evidence in the California
Evidence Code.
E. The failure of the Chief of Police 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 Manager pursuant to Section
8.60.080. The Chief of Police's decision 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.
F. 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.
G. The
Chief of Police shall grant or deny the application in accordance
with the provisions of this section, and so notify the applicant as
follows:
1. The
Chief of Police shall write or stamp "Granted" or "Denied" on the
application and date and sign such notation.
2. If
the application is denied, the Chief of Police shall attach to the
application a statement of the reasons for the denial.
3. If
the application is granted, the Chief of Police shall attach to the
application an adult business license.
H. The
Chief of Police shall grant the application and issue the adult business
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 below.
I. If the
Chief of Police 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.
J. The
Chief of Police 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
8.60.040 (status of an L.L.C.).
6. The license applicant complies with Section
8.60.050(A) of this chapter.
K. An applicant,
including, if an L.L.C., partnership or corporation, any of the partners,
officers, or directors, cannot re-apply for an adult business license
for a particular location within one year from the date of prior denial.
L. Any affected person may appeal the decision of the Chief of Police in writing in accordance with the provisions of Section
8.60.080.
(Ord. NS-761 § 3, 2005; Ord. CS-062 § IV, 2009)
A. On determining
that grounds for license suspension or revocation exist, the Chief
of Police or designee 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 conducted by the City Manager or
a designated hearing officer designated by him or her which can include
a retired judge. Hearings pursuant to this section shall be conducted
in accordance with procedures established by the City Manager or designated
hearing officer 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
City Manager or designated hearing officer 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.
4. The
City Manager or designated hearing officer's decision shall be final.
Section 1.20.600 of this code shall not apply to any decisions made
under this section.
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
8.60.030 and the zoning requirements of Chapter
21.43, and all other applicable building, fire, electrical, plumbing, health, and zoning requirements of this 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. The
license holder has:
a. Within the past two years, pled guilty or nolo contendere, or been
convicted of, or released from confinement of conviction of, whichever
is the later date, an offense classified by this or any other state
as a sex or sex-related offense, if the conviction is a misdemeanor;
or
b. Within the past five years, pled guilty or nolo contendere, or been
convicted of, or released from confinement of conviction of, whichever
is the later date, an offense classified by this or any other state
as a sex or sex-related offense, if the conviction is a felony; or
c. Within the past five years, pled guilty or nolo contendere, or been
convicted of, or released from confinement of conviction of, whichever
is the later date, two or more offenses classified by this or any
other state as sex or sex-related offenses if the convictions are
two or more misdemeanors or combination of misdemeanor offenses occurring
within any 24-month period.
8. That
the transferee/new owner of an adult business or adult business license
failed to comply with the requirements of this chapter.
9. The
license holder, partner, director, or manager has knowingly allowed
or permitted, and has failed to make a reasonable effort to prevent
the occurrence of any of the following on the premises of the adult
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
and 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 Sections
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 which includes the disruptive conduct
of business patrons whether on or immediately off the premises where
such patrons disturb the peace, obstruct traffic, damage property,
engage in criminal conduct, violate the law and otherwise impair the
free enjoyment of life and property.
C. After
holding the hearing in accordance with the provisions of this section,
if the City Manager or designated hearing officer finds and determines
that there are grounds for suspension or revocation, the City Manager
or designated hearing officer shall impose one of the following:
1. Suspension
of the license for a specified period not to exceed six months; or
2. Revocation
of the license.
The City Manager or designated hearing officer shall render
a written decision that shall be hand delivered or overnight mailed
to the license holder within five days of the public hearing.
|
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 within 12 months after the date of such revocation.
E. The
time for a court challenge to a decision of the City Manager or designated
hearing officer is governed by California
Code of Civil Procedure
Section 1094.8.
F. Notice
of the City Manager or designated hearing officer's decision and its
findings shall include citation to California
Code of Civil Procedure
Section 1094.8.
G. Any
applicant or license holder whose license has been suspended or revoked
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. NS-761 § 3, 2005; Ord. CS-062 § V, 2009)
The provisions of this chapter regulating adult businesses are
not intended to be exclusive, and compliance therewith shall not excuse
non-compliance with any other provisions of this code and/or any other
regulations pertaining to the operation of businesses as adopted by
the City Council of the City of Carlsbad.
(Ord. NS-761 § 3, 2005)
In addition to the penalties set forth in this chapter, any
adult business that is operating in violation of these provisions
regulating adult businesses is hereby declared to constitute a public
nuisance and, as such, may be abated or enjoined from further operation.
(Ord. NS-761 § 3, 2005)
If any section, subsection, paragraph, sentence, clause, or
phrase of this chapter and the ordinance to which it is a part, or
any part thereof is held for any reason to be unconstitutional, invalid,
or ineffective by any court of competent jurisdiction, the remaining
sections, subsections, paragraphs, sentences, clauses, and phrases
shall not be affected thereby. The City Council hereby declares that
it would have adopted this chapter and the ordinance to which it is
a part regardless of the fact that one or more sections, subsections,
paragraphs, sentences, clauses, or phrases may be determined to be
unconstitutional, invalid, or ineffective.
(Ord. NS-761 § 3, 2005)