The intent of this chapter is to regulate adult-oriented businesses
which, because of their very nature, are believed to have many of
the recognized significant secondary effects on the community which
include, but are not limited to: depreciated property values, and
increased vacancies in residential areas in the vicinity of the adult-oriented
businesses; higher crime rates, noise, debris or vandalism in the
vicinity of adult-oriented businesses; blighting conditions such as
low level of maintenance of commercial premises and parking lots which
thereby have a deleterious effect upon adjacent areas. Special regulation
of these uses is necessary to insure that these adverse effects will
not contribute to the blighting or downgrading of the neighborhoods
in the vicinity of the adult-oriented businesses. It is neither the
intent, nor effect of this chapter to restrict or deny access by adults
to sexually oriented materials or merchandise protected by the First
Amendment, or to deny access by the distributors or exhibitors of
adult-oriented businesses to their intended market.
Nothing in this chapter is intended to authorize, legalize or
permit the establishment, operation or maintenance of any business,
building or use which violates any City ordinance or any statute of
the State of California regarding public nuisances, unlawful exposure,
sexual conduct, lewdness or obscene or harmful matter or the exhibition
or public display thereof.
(§ 2, Ord. No. 802)
For the purposes of this chapter, unless otherwise apparent
from the context, certain words and phrases used in this chapter are
defined in Appendix A of the San Juan Capistrano Municipal Code.
(§ 2, Ord. No. 802)
No adult-oriented business shall be permitted to operate, engage in, conduct or carry on business within the City unless the owner of the business first obtains an adult-oriented business permit and a business license from the City, as well as any other permits or license required by law. The above notwithstanding, no adult-oriented business proposing to provide live entertainment shall be required to obtain a conditional use permit. If an adult-oriented business intends to serve alcoholic beverages, the business shall also be required to obtain a conditional use permit from the City for the service of the alcoholic beverages. An adult-oriented business shall be permitted as a principal permitted use in the CM (Commercial Manufacturing) and MP (Industrial Park) Districts of the City, subject to the specific design, locational and operational standards contained in Title 9, Chapter 3, Article 6, Section 9-3.626 of the Municipal Code.
(§ 2, Ord. No. 802)
The property owner, or authorized agent of the property owner,
is eligible to request an adult-oriented business permit. A single
adult-oriented business permit shall suffice for the operation of
any single adult-oriented business on any permitted site in the City
as designated by the Municipal Code and consistent with the provisions
of Section 9-3.626.
The following information is required at the time an adult-oriented
business permit is submitted to the Planning Services Department:
(a)
A
completed adult-oriented business permit application.
(1)
If the applicant is an individual, the individual shall state his
or her legal name (including any aliases), address, and submit satisfactory
written proof that he or she is at least 18 years of age.
(2)
If the applicant is a partnership, the partners shall state the partnership’s
complete name, whether the partnership is general or limited, and
attach a copy of the partnership agreement, if any.
(3)
If the applicant is a corporation, the corporation shall provide
its complete name, the date of its incorporation, evidence that the
corporation is in good standing under the laws of the State of California,
the names and capacity of all officers and directors, the name of
the registered corporate agent and the address of the registered officer
for service of process.
(4)
If the applicant is an individual, he or she shall sign the application.
If the applicant is other than an individual, an officer of the business
entity or an individual with a 10% or greater interest in the business
entity shall sign the application;
(b)
If
the applicant intends to operate the adult-oriented business under
a name other than that of the applicant, the applicant shall file
the fictitious name of the adult-oriented business and show proof
of registration of the fictitious name;
(c)
A
nonrefundable deposit and/or fee as set forth by resolution of the
City Council;
(d)
A
description of the type of adult-oriented business for which the permit
is requested and the proposed address where the adult-oriented business
will operate, plus the names and addresses of the property owners
and, if applicable, lessors of the adult-oriented business site;
(e)
The
address to which notice of action on the application is to be mailed;
(f)
The names of all employees, independent contractors, and other persons who will perform at the adult-oriented business, who are required by Section 5-27.08 of this chapter to obtain an adult-oriented business performer license (for ongoing reporting requirements see Title 9, Chapter 3, Article 6, Section 9-3.626(d)(10));
(g)
A
floor plan or diagram showing the interior configuration of the premises,
including a statement of the uses of the total floor area to be occupied
by the adult-oriented business. The floor plan or diagram need not
for the purposes of this permit be professionally prepared, but must
be drawn to a designated scale;
(h)
A
certificate and straight-line, to scale drawing prepared by a registered
architect or civil engineer within 30 days prior to the submission
of the application depicting the building and the portion thereof
to be occupied by the adult-oriented business, and the property lines
of any church, school, park, residential zone or use within 1,000
feet of the primary entrance of the adult-oriented business;
(i)
A
diagram of the off-street parking areas and premises entries of the
adult-oriented business showing the location of the lighting system
required by Section 9-3.626 of the Municipal Code including the submission
of a photometric analysis;
(j)
The
fact that an applicant possesses other types of state or City permits
or licenses does not exempt the applicant from the requirement of
obtaining an adult-oriented business permit;
(k)
Whether
the applicant, any partner if the applicant is a partnership, or any
officer of the corporation if the applicant is a corporation has been
convicted within the past three years of any of the following: one
or more violations of Penal Code Sections 315, 316, 318, 266a, 266b,
266c, 266e, 266g, 266h, 266i, 647(a), 647(b), and 647(d); any equivalent
violation of the code of another state, or the applicant has had an
adult-oriented permit revoked by this City or any other governmental
entity within the past three years;
(l)
A
completed fingerprint card of the applicant prepared by the Orange
County Sheriff’s Department.
(§ 2, Ord. No. 802)
(a)
The
Planning Director or designated representative shall, within 15 working
days of submission of an application, determine whether the application
is complete. If the Planning Director or designated representative
determines that the application is incomplete or the applicant has
completed the application improperly, the Planning Director or designated
representative shall, within the aforementioned time period, notify
the applicant in writing of such fact. The time period for acting
upon the application shall not commence until a complete application
has been accepted by the Planning Director. If the applicant’s
application was determined to be incomplete, upon submission of the
revised application and support information the Planning Director
or designated representative shall have 15 working days to determine
completeness.
(b)
Upon
receipt of a completed application and payment of the application
and permit fees, the Planning Director shall immediately stamp the
application as received and promptly investigate the information contained
in the application to determine whether the applicant shall be issued
an adult-oriented business permit.
(c)
Within 45 days of receipt of the completed application, the Planning Director shall complete the investigation, grant or deny the application in accordance with the provisions of this chapter and Title 9, Section 9-3.626 of the Municipal Code, and so notify the applicant as follows:
(1)
The Planning Director shall write or stamp “Granted”
or “Denied” on the application and the date and sign such
notation.
(2)
If the application is denied, the Planning Director shall attach
to the application a statement of the reasons for denial.
(3)
If the application is granted, the Planning Director shall attach
to the application an adult-oriented business permit.
(4)
The application as granted or denied and the permit, if any, shall
be placed in the United States mail, first class postage prepaid,
addressed to the applicant at the address stated in the application.
(§ 2, Ord. No. 802)
The Planning Director shall grant the application and issue
the adult-oriented business permit unless:
(a)
The building, structure, equipment, or location used by the business for which an adult-oriented business permit is required does not comply with the requirements of the health, zoning, fire and safety laws of the City and the State of California, or with the requirements of this chapter or provisions of Title 9, Section 9-3.626 of this Municipal Code.
(b)
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.
(c)
An
applicant is under 18 years of age.
(d)
The
required application and permit fee has not been paid.
(e)
Within
the past three years, the applicant has been convicted of any of the
following offenses: one or more violations of Penal Code Sections
315, 316, 318, 266a, 266b, 266c, 266e, 266g, 266h, 266i, 647(a), 647(b)
and 647(d); any equivalent violation of the code of another state,
or the applicant has had an adult oriented permit revoked by this
City or any other governmental entity within the past three years.
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If the Planning Director grants the application or if the Planning Director neither grants nor denies the application within the 45 days after it is stamped as received (determination of complete application), the applicant may begin operating the adult-oriented business for which the permit was sought, subject to strict compliance with the development and performance standards of Title 9, Section 9-3.626 and the requirements of this chapter, including but not limited to the renewal requirements of this section.
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Each adult-oriented business permit shall expire one year from
the date of issuance, and may be renewed only by filing with the Planning
Director 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 45 days before the expiration date
of the permit. When made less than 45 days before the expiration date,
the expiration of the permit will not be stayed. Applications for
renewal shall be acted upon as provided in this section for action
upon applications for permits.
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(§ 2, Ord. No. 802)
(a)
A
permittee shall not operate an adult-oriented business under the authority
of an adult-oriented business permit at any place other than the address
of the adult-oriented business stated in the application for the permit.
(b)
A permittee shall not transfer ownership or control of an adult-oriented business or transfer an adult-oriented business permit to another person unless and until the transferee obtains an amendment to the permit from the Planning Director stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the Planning Director in accordance with Section 5-27.04, accompanies the application with a transfer fee in an amount set by resolution of the City Council, and the Planning Director determines in accordance with Section 5-27.06 that the transferee would be entitled to the issuance of an original adult-oriented business permit.
(c)
No
permit may be transferred when the Planning Director has notified
the permittee that the permit has been or may be suspended or revoked.
(d)
Any
attempt to transfer a permit either directly or indirectly in violation
of this section is hereby declared void and the permit shall be deemed
revoked.
(§ 2, Ord. No. 802)
(a)
No person shall engage in or participate in any live performance depicting specified anatomical parts or involving specified sexual activities in an adult-oriented business, without a valid adult-oriented business performer permit issued by the city. All persons who have been issued an adult-oriented business permit shall promptly supplement the information provided as part of the application for the permit required by Section 5-27.04, with the names of all performers required to obtain an adult-oriented business performer permit, within 30 days of any change in the information originally submitted. Failure to submit such changes shall be grounds for suspension and/or revocation of the adult-oriented business permit.
(b)
The
Planning Director shall grant, deny, and renew adult-oriented business
performer permits.
(c)
The
application for an adult-oriented business performer permit shall
be made on a form provided by the Planning Director. An original and
two copies of the completed and sworn permit application shall be
filed with the Planning Services Department.
(d)
The
completed application shall contain the following information and
be accompanied by the following documents:
(1)
The applicant’s legal name and any other names (including “stage
names” and aliases) used by the applicant;
(2)
Age, date, and place of birth;
(3)
Height, weight, hair, and eye color;
(4)
Present residence address and telephone number;
(5)
A completed fingerprint card of the applicant prepared by the Orange
County Sheriff’s Department and a color photograph at least
two inches by two inches clearly showing the applicant’s face.
Any fees for the photographs and fingerprints shall be paid by the
applicant;
(6)
Whether the applicant has ever been convicted of:
(i)
Any of the offenses set forth in Sections 315, 316, 318, 266a, 266b,
266c, 266e, 266g, 266h, 266i, 647(a), 647(b), and 647(d) of the California
Penal Code as those sections now exist or may hereafter be amended
or renumbered, or
(ii)
The equivalent of the aforesaid offenses outside the State of California;
(7)
Whether such person is or has ever been licensed or registered as
a prostitute, or otherwise authorized by the laws of any other jurisdiction
to engage in prostitution in such other jurisdiction. If any person
mentioned in this subsection has ever been licensed or registered
as a prostitute, or otherwise authorized by the laws of any other
state to engage in prostitution, a statement shall be submitted giving
the place of such registration, licensing or legal authorization,
and inclusive dates during which such person was so licensed, registered,
or authorized to engage in prostitution;
(8)
State driver’s license or identification number;
(9)
Satisfactory written proof that the applicant is at least 18 years
of age;
(10)
If the application is made for the purpose of renewing a permit,
the applicant shall attach a copy of the permit to be renewed.
(e)
The
application shall be accompanied by a nonrefundable application fee.
Said amount of the fee shall be set by resolution of the City Council.
(f)
Upon
receipt of a completed application and payment of the application
fees, the Planning Director shall immediately stamp the application
complete and promptly investigate the application.
(§ 2, Ord. No. 802)
(a)
The
Planning Director or designated representative shall within five working
days of submission of an application, determine whether the application
is complete. If the Planning Director determines that the application
is incomplete or that the applicant has completed the application
improperly, the Planning Director shall promptly notify the applicant
of such fact. The time period for granting or denying a permit shall
be stayed until such time that a complete application has been submitted.
(b)
Prior
to the issuance of the adult-oriented business performer permit, the
City designated agency shall conduct a background check. Upon satisfactory
completion of said background check, the Planning Director shall,
within five working days, grant or deny the application and so notify
the applicant as follows:
(1)
The Planning Director shall write or stamp “Granted”
or “Denied” on the application and date and sign such
notation.
(2)
If the application is granted, the Planning Director shall provide
the adult-oriented business performer with an identification card
containing the name, address, photograph, and permit number.
(3)
If the application is denied, the Planning Director shall attach
to the application a statement of the reasons for denial.
(4)
If the application is granted, the Planning Director shall attach
to the application an adult-oriented business performer permit.
(5)
The application as granted or denied and the permit, if any, shall
be placed in the United States mail, first class postage prepaid,
addressed to the applicant at the residence address stated in the
application.
(c)
The Planning Director shall grant the application and issue the permit unless the application is denied for one or more of the reasons set forth in subsection (e) of this section.
(d)
If
the Planning Director grants the application or if the Planning Director
neither grants nor denies the application within five working days
of the completion of the background check, the applicant may begin
performing in the capacity for which the license was sought.
(e)
The
Planning Director shall deny the application for any of the following
reasons:
(1)
The applicant has knowingly made any false, misleading, or fraudulent
statement of a material fact in the application for a permit or in
any report or document required to be filed with the application.
(2)
The applicant is under 18 years of age.
(3)
The adult-oriented business performer permit is to be used for performing
in a business prohibited by State or City law.
(4)
The applicant has been registered in any state as a prostitute. A
permit may be issued if the latest date of registration occurred more
than five years prior to the date of the application.
(5)
The applicant has been convicted of any of the offenses enumerated in Section 5-27.08(d)(6)(i)5-27.08(d)(6)(i), or convicted of an offense outside the State of California that would have constituted any of the described offenses if committed with the State of California. A permit may be issued to any person convicted of the described crimes if the conviction occurred more than five years prior to the date of the application.
(f)
Each adult-oriented business performer permit shall expire one year from the date of issuance and may be renewed only by filing with the Planning Services Department a written request for renewal, accompanied by the application fee and a copy of the permit to be renewed. The request for renewal shall be made at least 45 days before the expiration date of the permit. When made less than 45 days before the expiration date, the expiration of the permit will not be stayed. Applications for renewal shall be acted on as provided in subsections (c) and (e), above.
(§ 2, Ord. No. 802)
An adult-oriented business permit or adult-oriented business performer permit may be suspended or revoked in accordance with the procedures and standards of this chapter and Title 9, Section 9-3.626 of this Municipal Code.
(a)
On
determining that grounds for permit revocation exist, the Planning
Director 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 matter 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 Planning Director, 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; 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 decision of the Planning Director may be appealed in accordance with Section 5-27.11 of this chapter.
(b)
A
permittee may be subject to suspension or revocation of his or her
permit, for any of the following causes arising from the acts or omissions
of the permittee, or an employee, performer, independent contractor,
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,
or in the case of an adult-oriented business performer, the permittee
has engaged in one of the activities described below while on the
premises of an adult-oriented business:
(i)
Any act of unlawful sexual intercourse, sodomy, oral copulation,
or masturbation;
(ii)
Use of the establishment as a place where unlawful solicitations
for sexual intercourse, sodomy, oral copulation, or masturbation openly
occur;
(iii)
Any conduct constituting a criminal offense which requires registration
under Section 290 of the California Penal Code;
(iv)
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;
(v)
Any act constituting a violation of provisions of 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;
(c)
After
holding the hearing in accordance with the provisions of this section,
if the Planning Director finds and determines that there are grounds
for disciplinary action, based upon the severity of the violation,
the Planning Director shall impose one of the following:
(§ 2, Ord. No. 802)
After denial of an application for an adult-oriented business permit or an adult-oriented business performer permit, or after denial of renewal or a permit, or suspension or revocation of a permit, the applicant or person to whom the permit was granted may seek review of such administrative action by the City Manager in a manner provided herein. Any person seeking to appeal a decision of the Planning Director shall file a written notice of appeal with the Planning Director not later than 15 calendar days after the date of the notice denying the application or permit renewal or imposing the suspension or revocation. The notice shall state, with specificity, the specific factual and legal basis of the appeal. The Planning Director shall, within 10 days, schedule a hearing before the City Manager or his or her designated representative and notify the appellant, in writing, of the day, time, and location of the hearing which shall be held no later than 30 days from the date the appeal has been filed. The appeal shall be conducted in accordance with the same procedures established by the Planning Director pursuant to Section 5-27.10. The City Manager shall provide the appellant with a written decision within 10 working days of the conclusion of the hearing. If the denial, suspension or revocation is affirmed on review, the applicant or permittee may seek prompt judicial review of such administrative action pursuant to California Code of Civil Procedure Section 1094.5. The City shall make all reasonable efforts to expedite judicial review, if sought by the permittee.
(§ 2, Ord. No. 802)
