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 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.
In addition to any other definitions contained in the Municipal
Code, the following words and phrases shall 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 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 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 a hotel or motel (as defined in the Municipal
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.
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 consideration.
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 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.
shall mean 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.
shall mean a business establishment having as a regular and
substantial portion of its stock in trade, adult oriented material.
shall mean any child day care facility as defined in Section
1596.750 of the California Health and Safety Code other than family
day care homes.
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 that owns and operates an adult business;
or (4) the person designated by the officers of a corporation to be
the permit 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 sado-masochistic 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 female breast.
All adult businesses are subject to the adult business regulatory
permit 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 Encinitas unless
the person first obtains, and continues to maintain in full force
and effect, an adult business regulatory permit as herein required.
Any occurrence of the establishment of an adult business as defined in Section 6.10.020 shall require a new application for an adult business regulatory permit. The adult business regulatory permit shall be subject to the development and operational standards of this chapter and the underlying zone where the facility is located.
B.
The
City Planning Official or his/her designee shall grant or deny adult
business regulatory permits in accordance with these regulations.
C.
The
City Planning Commission shall suspend or revoke adult business regulatory
permits in accordance with these regulations.
D.
Permit
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 permit 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 permit 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 permit 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 permit 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
permit applicant shall sign the application. All persons who sign
the application must also provide names, aliases, addresses, and date
of birth.
6.
If
the permit applicant intends to operate the adult business under a
name other than that of the permit applicant, the permit 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 permit 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 to the premises
of the adult business, also showing the location of the lighting system
required by this chapter.
E.
The
completed application shall be accompanied by a non-refundable application
fee. The amount of such fees shall be set by the City Council.
F.
The
completeness of an application for an adult business regulatory permit
shall be determined by the Planning Official within five working days
of its submittal. If the Planning Official determines that the permit
application is incomplete, the Planning Official shall immediately
notify in writing the permit 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 Planning Official
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.
G.
The
fact that a permit applicant possesses other types of state or city
permits or licenses does not exempt the permit applicant from the
requirement of obtaining an adult business regulatory permit.
A.
Upon
receipt of a completed application and payment of the application
and permit fees, the Planning Official 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 permit 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 Official 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, the Planning Official shall not be bound by the formal
rules of evidence in the California Evidence Code.
D.
The Planning Official shall render a written decision on the application for an adult business regulatory permit within two working days of the public hearing required by this section. The failure of the Planning Official 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 6.10.080. The Planning Official'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.
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 Official shall grant or deny the application in accordance
with the provisions of this section, and so notify the applicant as
follows:
1.
The
Planning Official shall write or stamp "Granted" or "Denied" on the
application and date and sign such notation.
2.
If
the application is denied, the Planning Official shall attach to the
application a statement of the reasons for the denial.
3.
If
the application is granted, the Planning Official shall attach to
the application an adult business regulatory permit.
G.
The Planning Official shall grant the application and issue the adult business regulatory permit 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 Official grants the application, the applicant may begin
operating the adult business for which the permit was sought, subject
to strict compliance with the development and operational standards
and requirements of this chapter. The permit holder shall post the
permit conspicuously in the premises of the adult business.
I.
The
Planning Official 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
permit applicant is at least 18 years of age.
4.
The
required application fees have been paid.
5.
The application complies with Section 6.10.030D3.
J.
A person
cannot re-apply for an adult business regulatory permit for a particular
location within one year from the date of prior denial.
A.
Hours
of Operation. It shall be unlawful for any owner, operator, manager
or employee of an adult business to allow such adult business to remain
open for business, or to permit any employee 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 12:00
a.m. and 10:00 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.
Inoperable and/or broken lights shall be replaced within 24 hours,
excepting herefrom an adult hotel/motel.
D.
Regulation
of Adult Booth/Individual Viewing Area.
1.
No
adult booth/individual viewing area shall be occupied by more than
one individual at a time.
2.
Each
adult booth/individual viewing area within the adult business shall
be visible from a continuous and accessible main aisle in a public
portion of the establishment, and shall not be obscured by any door,
curtain, wall, two-way mirror or other device which would prohibit
a person from seeing the entire interior of the adult booth/individual
viewing area from the main aisle. A manager shall be stationed in
the main aisle at all times. Further, no one shall maintain any adult
booth/individual viewing area in any configuration unless the entire
interior wherein the picture or entertainment that is viewed is visible
from one main aisle. The entire body of any patron in any adult booth/individual
viewing area must be visible from the main aisle without the assistance
of mirrors or any other device.
3.
No
doors are permitted on an adult booth/individual viewing area. No
partially or fully enclosed adult booth/individual viewing areas or
partially or fully concealed adult booth/individual viewing areas
shall be maintained.
4.
No
holes or other openings (commonly known as glory holes) shall be permitted
between adult booths/individual viewing areas. Any such hole or opening
shall be repaired within 24 hours using pop rivets to secure metal
plates over the hole or opening to prevent patrons from removing the
metal plates.
5.
No
beds shall be permitted in an adult booth/individual viewing area.
E.
On-Site
Manager—Security Measures. All adult businesses shall have a
responsible person who shall be at least 18 years of age 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/her name to the
Planning Official 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.
All adult businesses shall provide a security system that visually
records and monitors all parking lot areas, or in the alternative,
state-licensed, uniformed security guards to patrol and monitor the
parking lot areas during all times during which the business is open.
If the business employs security guards, they shall provide written
confirmation to the Police Chief prior to their employment that the
guards are duly registered. No performer may serve as a security guard.
A sign indicating compliance with this provision shall be posted
on the exterior of the premises between four to six feet from the
ground. The sign shall not exceed two feet by three feet and shall
at a minimum be one foot by one and a half feet and shall utilize
red or black printing of letters not less than one inch in size.
F.
Interior
of Premises. No exterior door or window on the premises of an adult
business shall be propped or kept open at any time while the business
is open and any exterior windows shall be covered with opaque coverings
at all times.
G.
Signs.
All adult businesses shall comply with the following sign requirements,
in addition to those specified elsewhere in the Encinitas Municipal
Code. Should a conflict exist between the other requirements of the
Encinitas Municipal Code and this subsection, the more restrictive
shall prevail.
1.
If
an adult business does not serve alcohol, it shall post a notice 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 25 points. 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.
H.
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 insure 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.
I.
Trash.
All interior trash cans shall be emptied into a single locked trash
bin lined with a plastic bag at least once a day. At least four times
a day, the front and rear exteriors of any adult business 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.
J.
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.
2.
No
performer shall be within 10 feet of a patron while the performer
is performing. This 10-foot separation shall be marked by a continuous
railing or other physical barrier designed to obstruct any contact
between the performer and the patron(s).
3.
No
performer shall have physical contact with any patron, and no patron
shall have physical contact with any performer, while the performer
is performing on the premises. In addition, while on the premises,
no performer shall have physical contact with a patron and no patron
shall have physical contact with a performer, 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 by such performer. This prohibition
does not extend to incidental touching. 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.
4.
All
employees, 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.
5.
If
patrons wish to pay or tip performers, payment or tips shall be placed
in containers placed at least 10 feet from the stage or other area
used by the performers. Patrons shall not throw money to performers,
hand money directly to performers, place monies in the performers'
costumes or otherwise place or throw monies on the stage. Patrons
shall be advised of this requirement 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.
6.
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.
7.
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.
8.
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 seven 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.
9.
Fixed
rail(s) at least 30 inches in height shall be maintained establishing
the separations between performers and patrons required by this subsection.
K.
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;
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; and
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.
A.
A permit
holder shall not operate an adult business under the authority of
an adult business regulatory permit at any place other than the address
of the adult business stated in the application for the permit.
B.
In the
event of a transfer of ownership of the adult business or the adult
business regulatory permit, the new owner shall be fully informed
of the requirements of this Code, including the operational and development
standards of this chapter.
C.
In the
event of a transfer of the adult business or the adult business regulatory
permit, the transferee must provide the Planning Official 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, 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.
A.
On determining
that grounds for permit suspension or revocation exist, the Planning
Official or his/her designee shall furnish written notice of the proposed
suspension or revocation to the permit holder. Such notice shall set
forth the time and place of a public hearing and the ground or grounds
upon which the hearing is based, the pertinent Encinitas 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 permit holder, or shall be delivered
to the permit holder personally, at least 10 days prior to the hearing
date. Public hearings pursuant to this section shall be noticed in
accordance with Government Code Sections 65091 and 65905 and conducted
by the Planning Commission. Public 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
permit holder. Extensions of time or continuances sought by a permit
holder shall not be considered delay on the part of the City or constitute
failure by the City to provide for prompt decisions on permit suspensions
or revocations.
B.
A permit
may be suspended or revoked based on the following causes arising
from the acts or omissions of the permit holder, or an employee, independent
contractor, partner, director, or manager of the permit 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 development and operational standards contained in Section 6.10.050, and all other applicable building, fire, electrical, plumbing, health, and zoning requirements of the Encinitas Municipal Code.
2.
The
permit holder has failed to obtain or maintain all required City permits.
3.
The
permit holder has made any false, misleading, or fraudulent statement
of material fact in the application for an adult business regulatory
permit.
4.
The
permit is being used to conduct an activity different from that for
which it was issued.
5.
That
an individual employed by 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 an employee of 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 regulatory permit failed to comply with the requirements of Section 6.10.060.
8.
The
permit 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 permittee 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 Section 315, 316,
or 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 permit holder or is as a result of the permit holder's
negligent supervision of the employees 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 Planning Commission finds and determines that there are grounds
for suspension or revocation, the Planning Commission shall impose
one of the following:
D.
Any affected person may appeal the decision of the Planning Commission in writing within five days in accordance with the provisions of Section 6.10.080.
E.
In the
event a permit is revoked pursuant to this section, another adult
business regulatory permit to operate an adult business shall not
be granted to the permittee within 12 months after the date of such
revocation.
A.
After
approval, denial, suspension or revocation of a permit, any affected
person may appeal the decision to the City Council in writing within
five 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 working days of the hearing,
such written decision to be immediately 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 division 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 permit denial within the time frames established by this section
shall be deemed to constitute an approval of the adult business regulatory
permit.
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 include citation
to California Code of Civil Procedure Section 1094.8.
I.
Any
applicant or permit holder whose permit has been denied, 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.
A.
Employees.
Employees of an adult business must be at least 18 years of age. It
is 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 at least 18 years of age. If liquor is
served at the adult business, employees of the adult business must
be at least 21 years of age. If liquor is served at the adult business,
it is 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 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
is 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 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 is
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 permit to enter or remain within
the adult business any person who is not at least 21 years of age,
and 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 disks (DVDs), compact disks (CDs) and laser
disks 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 disks that have been rated X or rated NC-17
by the motion picture rating industry (AMPAA), 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,
the movies, videos, DVDs, CDs, and laser disks shall be located in
a specific section of the establishment from which persons under the
age of 18 shall be prohibited.
(Ord. 2017-07)
Each owner, operator, manager, employee 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.
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 regulations pertaining to the operation
of businesses as adopted by the City Council of the City of Encinitas.
A.
Any
owner, operator, manager, employee or independent contractor of an
adult business violating or permitting, counseling, or assisting the
violation of any of these provisions regulating adult businesses shall
be subject to a fine of not more than $1,000.00 pursuant to Government
Code Sections 36900 and 36901, and any and all other civil remedies
including permit revocation. All remedies provided herein shall be
cumulative and not exclusive. Any violation of these provisions shall
constitute a separate offense for each and every day during which
such violation is committed or continued.
B.
The
restrictions imposed pursuant to this section constitute a permitting
process, and do not constitute a criminal offense. Notwithstanding
any other provision of the Encinitas Municipal Code, the City does
not impose a criminal penalty for violations of the provisions of
this chapter related to sexual conduct or activities.
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.
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.
