It is the purpose of this chapter to regulate adult-oriented
businesses in order to promote the health, safety, morals, and general
welfare of the citizens of the city. The provisions of this chapter
have neither the purpose nor effect of imposing a limitation or restriction
on the content of any communicative materials, including adult-oriented
materials. Similarly, it is not the intent nor effect of this chapter
to restrict or deny access by adults to adult-oriented materials protected
by the First Amendment of either the State or Federal Constitution,
or to deny access by the distributors and exhibitors of adult-oriented
entertainment to their intended market. Neither is it the intent nor
effect of this chapter to condone or legitimize in any way the distribution
of obscene material.
(Ord. 1727 § 3, (2004))
For the purpose of this chapter, the following words and phrases
shall have the meanings respectively ascribed to them by this section:
"Adult-oriented businesses" or "Adult-oriented business"
means any one of the following, or combination thereof:
Adult arcade.
"Adult arcade" means an establishment where, for any form
of consideration, one or more still or motion picture projectors,
or similar machines, for viewing by five or fewer persons each, are
used to show films, computer generated images, motion pictures, video
cassettes, slides or other photographic reproductions 30% or more
of the number of which are distinguished or characterized by an emphasis
upon the depiction or description of specified sexual activities or
specified anatomical areas; or
Adult bookstore.
"Adult bookstore" means an establishment that has 30% or
more of its stock in books, magazines, periodicals or other printed
matter, or of photographs, films, motion pictures, video cassettes,
slides, tapes, records, disks, or other forms of visual or audio representations
which are distinguished or characterized by an emphasis upon the depiction
or description of specified sexual activities and/or specified anatomical
areas; or
Adult cabaret.
(A)
(B)
(C)
"Adult cabaret" means a nightclub, restaurant, or similar
business establishment that:
Regularly features live performances which are distinguished
or characterized by an emphasis upon the display of specified anatomical
areas or specified sexual activities; or
Regularly features persons who appear semi-nude; or
Shows films, computer generated images, motion pictures, video
cassettes, slides, or other photographic or graphic reproductions
30% or more of the number of which are distinguished or characterized
by an emphasis upon the depiction or description of specified sexual
activities or specified anatomical areas; or
Adult hotel/motel.
(A)
(B)
"Adult hotel/motel" means a hotel or motel or similar business
establishment offering public accommodations for any form of consideration
that:
Provides patrons with closed-circuit television transmissions,
films, computer generated images, motion pictures, video cassettes,
slides, or other photographic reproductions 30% or more of the number
of which are distinguished or characterized by an emphasis upon the
depiction or description of specified sexual activities or specified
anatomical areas; and
Rents, leases, or lets any room for less than a six hour period,
or rents, leases, or lets any single room more than twice in a 24-hour
period; or
Adult motion picture theater.
"Adult motion picture theater" means a business establishment
where for any form of consideration, films, computer generated images,
motion pictures, video cassettes, slides or similar photographic reproductions
are shown, and 30% or more of the number of which are distinguished
or characterized by an emphasis upon the depiction or description
of specified sexual activities or specified anatomical areas; or
Adult theater.
"Adult theater" means a theater, concert hall, auditorium,
or similar establishment that for any form of consideration, regularly
features live performances which are distinguished or characterized
by an emphasis on the display of specified anatomical areas or specified
sexual activities; or
Modeling studio.
"Modeling studio" means a business that provides, for pecuniary
compensation, monetary or other consideration, hire or reward, figure
models who, for the purposes of sexual stimulation of patrons, display
"specified anatomical areas" to be observed, sketched, photographed,
painted, sculpted or otherwise depicted by persons paying such consideration.
"Modeling studio" does not include schools maintained pursuant to
standards set by the State Board of Education. "Modeling studio" further
does not include a studio or similar facility owned, operated, or
maintained by an individual artist or group of artists, and which
does not provide, permit, or make available "specified sexual activities."
"Adult material" means books, magazines, periodicals, or
other printed matter, or photographs, films, motion pictures, video
cassettes, slides, tapes, records, disks, or other forms of visual
or audio representations which are distinguished or characterized
by an emphasis upon the depiction or description of specified sexual
activities and/or specified anatomical areas.
"Adult-oriented business operator" or "operator" means a
person who supervises, manages, inspects, directs, organizes, controls
or in any other way is responsible for or in charge of the premises
of an adult-oriented business or the conduct or activities occurring
on the premises thereof.
"Adult-oriented business performer" or "performer" means
a person who, with or without compensation, publicly performs specified
sexual activities or publicly displays specified anatomical parts
in adult-oriented businesses.
"Applicant" means a person who is required to file an application
for a permit under this chapter, including an individual owner, managing
partner, officer of a corporation, or any other operator, manager,
employee, or agent of an Adult-Oriented Business.
"Bar" means any commercial establishment licensed by the
State Department of Alcoholic Beverage Control to serve any alcoholic
beverages on the premises.
"Chief of police" means the chief of police of the city or
the chief's authorized representative.
"Distinguished or characterized by an emphasis upon" shall
mean and refer to the dominant or essential theme of the object described
by the phrase. For example, when the phrase refers to films that are
"distinguished or characterized by an emphasis upon" the depiction
or description of specified sexual activities or specified anatomical
areas, the films so described are those whose dominant or predominant
character and theme are the depiction of the enumerated sexual activities
or anatomical areas.
"Entertainer" means any person who is an employee or independent
contractor of the adult-oriented business, or any person who, with
or without any compensation or other form of consideration, performs
live entertainment for patrons of an adult-oriented business. The
term "entertainer" also includes all adult-oriented business performers.
The term "figure model" means any person who, for pecuniary
compensation, consideration, hire or reward, poses in a modeling studio
to be observed, sketched, painted, drawn, sculptured, photographed
or otherwise depicted.
"Health officer" means the chief of police of the city or
his or her duly authorized representative.
"Nudity" or a "state of nudity" means the showing of the
human male or female genitals, pubic area, or buttocks with less than
a fully opaque covering, the showing of the female breast with less
than a fully opaque covering of any part of the nipple, or the showing
of the covered male genitals in a discernible turgid state.
"Operate an adult-oriented business" means the supervising,
managing, inspecting, directing, organizing, controlling or in any
way being responsible for or in charge of the conduct of activities
of an adult-oriented business or activities within an adult-oriented
business.
"Person" means any individual, partnership, co-partnership,
firm, association, joint stock company, corporation, or combination
of the above in whatever form or character.
"Regularly features" with respect to an adult theater, adult
motion picture theater, or adult cabaret means a regular and substantial
course of conduct. The fact that live performances which are distinguished
or characterized by an emphasis upon the display of specified anatomical
areas or specified sexual activities occurs on two or more occasions
within a 30 day period; three or more occasions within a 60 day period;
or four or more occasions within a 180 day period, shall to the extent
permitted by law be deemed to be a regular and substantial course
of conduct.
"Semi-nude" means a state of dress in which clothing covers
no more than the genitals, pubic region, buttocks, areola of the female
breast, as well as portions of the body covered by supporting straps
or devices.
"Specified anatomical areas" means any of the following:
Less than completely and opaquely covered human (A) genitals
or pubic region; (B) buttocks; or (C) female breast below a point
immediately above the top of the areola; or
Human male genitals in a discernibly turgid state, even if completely
and opaquely covered; or
Any device, costume or covering that simulates any of the body
parts included in subsection (i) or (ii) above.
"Specified sexual activities" means any of the following,
whether performed directly or indirectly through clothing or other
covering:
The fondling or other erotic touching of human genitals, pubic
region, buttocks, anus, or female breast; or
Sex acts, actual or simulated, including intercourse, oral copulation,
or sodomy; or
Masturbation, actual or simulated; or
Excretory functions as part of or in connection with any of
the other activities described in subdivision (i), (ii), or (iii)
of this subsection.
(Ord. 1727 § 3, (2004))
(a)
It is unlawful for any person to engage in, conduct or carry on,
or to permit to be engaged in, conducted or carried on, in or upon
any premises in the city, the operation of an adult-oriented business
unless the person first obtains and continues to maintain in full
force and effect an adult-oriented business regulatory permit ("business
permit") from the city as required by this chapter.
(b)
It is unlawful for any person to engage in or participate in any
live performance depicting specified anatomical areas or involving
specified sexual activities in an adult-oriented business unless the
person first obtains and continues in full force and effect an adult-oriented
business performer permit ("performer permit") from the city as required
by this chapter.
(Ord. 1727 § 3, (2004))
Any person who proposes to maintain, operate, or conduct an
adult-oriented business in the city shall file an original and two
copies of an application with the chief of police upon a form provided
by the city and shall pay a filing fee, as established by resolution
adopted by the city council from time to time, which shall not be
refundable.
(Ord. 1727 § 3, (2004))
(a)
Adult-oriented business regulatory permits are nontransferable, except in accordance with Section 10.58.045. All applications shall include the following information:
(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, address, the names of all partners, 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 its state of incorporation,
the names and capacity of all officers and directors, the name of
the registered corporate agent and the address of the registered office
for service of process.
(b)
If the applicant is an individual, he or she shall sign the application.
If the applicant is other than an individual, a duly authorized officer
of the business entity or an individual with a 10% or greater interest
in the business entity shall sign the application.
(c)
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.
(d)
A description of the type of adult-oriented business for which the
business permit is requested and the proposed address where the adult-oriented
business will operate, plus the names and addresses of the owners
and/or lessors of the adult-oriented business site.
(e)
The address to which notice of action on the application and all
further notices regarding the application or permit are 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 10.58.020 to obtain an adult-oriented business performer permit.
(g)
A sketch or diagram showing the interior configuration of the premises,
including a statement of the total floor area occupied by the adult-oriented
business. The sketch or diagram need not be professionally prepared,
but must be 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.
(h)
A certificate and straight-line drawing prepared within 30 days prior
to the application that depicts the geographic location of the adult-oriented
business with the following:
(1)
The building and the portion thereof to be occupied by the adult-oriented
business; and
(2)
The property lines of any other adult-oriented business within 1,000
feet of the primary entrance of the adult-oriented business for which
the business permit is being requested; and
(3)
The property lines of any school, athletic field, residential zone,
or residential use within 1,000 feet of the primary entrance of the
adult-oriented business for which the business permit is being requested.
(i)
A diagram of the off-street parking areas and premises entries of the adult-oriented business, including the location of the lighting systems required by Section 10.58.070 below.
(j)
If the chief of police determines that the application is incomplete,
the chief of police shall promptly notify the applicant of such a
fact and, on request of the applicant, grant the applicant an extension
of time of 10 days or less to complete the application properly. In
addition, the applicant may request an extension, not to exceed 10
days, of the time for the chief of police to act on the application.
The time period for granting or denying a business permit shall be
stayed during the period in which the applicant is granted an extension
of time.
(k)
The fact that an applicant possesses other types of federal, state,
or city permits, licenses, or other approvals does not exempt the
applicant from the requirement of obtaining an adult-oriented business
regulatory permit under this chapter.
(Ord. 1727 § 3 (2004); Ord. 1757 § 2, (2005))
(a)
Upon receipt of a completed application and payment of the application
and permit fees, the chief of police 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 regulatory permit.
(b)
Within 30 days of receipt of the completed application, the chief
of police shall complete the investigation, 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 denial.
(3)
If the application is granted, the chief of police shall attach to
the application an adult-oriented business regulatory permit.
(4)
The application as granted or denied and the business 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.
(c)
(d)
If the chief of police grants the application or if the chief neither grants nor denies the application within 30 days after it is stamped as received (except as provided in Section 10.58.030), the applicant may begin operating the adult-oriented business for which the business permit was sought, subject to strict and continuous compliance with the development and performance standards and requirements of this chapter.
(Ord. 1727 § 3 (2004))
The chief of police shall deny the application if the chief
finds any of the following:
(a)
The building, structure, equipment, or location used by the business
for which an adult-oriented business regulatory permit is required
does not comply with the requirements and standards of the health,
zoning, fire and safety laws of the city as set forth in this code,
San Mateo County, or the state of California; or
(b)
The applicant or the applicant's 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 business regulatory permit; or
(c)
The applicant is under 18 years of age; or
(d)
The required application fee has not been paid; or
(e)
The adult-oriented business does not comply with the locational standards of Chapter 25.76 of this code; or
(f)
The adult-oriented business does not comply with the performance
standards and requirements of these regulations.
(Ord. 1727 § 3, (2004))
(a)
Each adult-oriented business regulatory permit shall expire one year
from the date of issuance, and may be renewed only by filing with
the chief of police a written request for renewal, accompanied by
the annual permit fee and a copy of the permit to be renewed. The
written request for renewal shall update all information contained
in the original application, such as additional performers.
(b)
The request for renewal shall be made at least 30 days before the
expiration date of the business permit. When made less than 30 days
before the expiration date, the expiration of the business permit
will not be stayed.
(c)
Applications for renewal shall be acted on as provided herein for
action upon applications for permits.
(1727 § 3, (2004))
(a)
A permittee shall not operate an adult-oriented business under the
authority of an adult-oriented business regulatory permit at any place
other than the address of the adult-oriented business as stated in
the permit approved by the chief of police.
(b)
A permittee shall not transfer ownership or control of an adult-oriented business or transfer an adult-oriented business regulatory permit to another person unless and until the transferee obtains an amendment to the business permit from the chief of police stating that the transferee is now the permittee. To apply for such an amendment, the permittee and the transferee shall file an application for transfer in the form and containing the information described in Section 10.58.030 above together with the signature of the permittee and accompanied by a transfer fee in an amount set by resolution of the city council. The amendment application shall be processed and reviewed by the chief of police in accordance with Sections 10.58.030 to 10.58.040 as if the transferee were applying for an original business permit.
(c)
No business permit may be transferred when the chief of police has
notified the permittee in writing that the permit has been 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 business
permit shall be deemed revoked.
(Ord. 1727 § 3, (2004))
(a)
No person shall engage in or participate in any live performance
depicting specified anatomical areas or involving specified sexual
activities in an adult-oriented business, without a valid adult-oriented
business performer permit ("performer permit") issued by the city.
(b)
No operator shall employ or allow a performance at an adult-oriented
business by any person as a performer or entertainer who is required
to obtain a performer permit under this chapter unless that performer
or entertainer has first obtained approval of a performer permit pursuant
to this chapter.
(c)
Any person who has been issued an adult-oriented business regulatory
permit pursuant to this chapter shall promptly supplement the information
provided as part of the application for the adult-oriented business
permit required by this chapter with the name of each performer required
to obtain a performer permit pursuant to this chapter within 30 days
of any change in the information originally submitted. Failure to
submit such changes within this time period shall be grounds for suspension
of the adult-oriented business regulatory permit, and if the failure
is repeated, shall be grounds for revocation of the permit.
(Ord. 1727 § 3, (2004))
(a)
Any person who wishes to be an adult-oriented business performer
in the city shall file an original and two copies of an application
with the chief of police upon a form provided by the city and shall
pay a filing fee, as established by resolution adopted by the city
council from time to time, which shall not be refundable.
(b)
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; and
(2)
Age, date and place of birth; and
(3)
Height, weight, hair and eye color; and
(4)
Present residence address and telephone number; and
(5)
Whether the applicant has ever been convicted of:
(i)
Any of the offenses set forth in Sections 243.4, 266a, 266b, 266c,
266e, 266f, 266g, 266h, 266i, 266j, 267, 311.10, 311.11, 313.1, 314,
315, 316, 647(a), 647(b), 647(d), 653.22 and 653.23 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; and
(6)
Whether such applicant 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 the applicant 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 the inclusive
dates during which such person was so licensed, registered, or authorized
to engage in prostitution; and
(7)
Driver's license number or other identification number; and
(8)
Satisfactory written proof that the applicant is at least 18 years
of age; and
(9)
The applicant's fingerprints on a form provided by the police department,
and a color photograph clearly showing the applicant's face. Any fees
for the photographs and fingerprints shall be paid by the applicant.
(c)
If the chief of police determines that the application is incomplete,
the chief of police shall promptly notify the applicant of such a
fact and, on request of the applicant, grant the applicant an extension
of time of 10 days or less to complete the application properly. In
addition, the applicant may request an extension, not to exceed 10
days, of the time for the chief of police to act on the application.
The time period for granting or denying a performer permit shall be
stayed during the period in which the applicant is granted an extension
of time.
(d)
The fact that an applicant possesses other types of federal, state,
or city permits, licenses, or other approvals does not exempt the
applicant from the requirement of obtaining an adult-oriented business
performer permit under this chapter.
(Ord. 1727 § 3, (2004))
(a)
Within 10 days after receipt of the properly completed application
for a performer permit, the chief of police shall grant or deny the
application 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 denial.
(3)
If the application is granted, the chief of police shall attach to
the application an adult-oriented business performer 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 residence address stated in the
application.
(b)
The chief of police shall grant the application and issue the performer permit unless the application is denied for one or more of the reasons set forth in subsection (d) below.
(c)
If the chief of police grants the application or if the Chief of police neither grants nor denies the application within five business days after it is stamped as received (except as provided in Section 10.58.050), the applicant may begin performing in the capacity at the business for which the performer permit was sought.
(d)
The chief of police shall deny the application if the chief finds
any of the following:
(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;
or
(2)
The applicant is under 18 years of age; or
(3)
The performer permit is to be used for performing in a business prohibited
by State, County, or city law; or
(4)
The applicant has been registered or licensed in any state or country
as a prostitute during the last five years; or
(5)
The applicant has been convicted of any of the offenses enumerated in Section 10.58.050 above or convicted of an offense outside the State of California that would have constituted any of the described offenses if committed within the State of California. However, a performer 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 and the applicant has successfully completed all terms and conditions of the offense's probation or parole and is no longer on probation or parole.
(Ord. 1727 § 3, (2004))
(a)
Each performer permit shall expire one year from the date of issuance,
and may be renewed only by filing with the chief of police a written
request for renewal, accompanied by the annual permit fee and a copy
of the permit to be renewed. The written request for renewal shall
update all information contained in the original application.
(b)
The request for renewal shall be made at least 30 days before the
expiration date of the performer permit. When made less than 30 days
before the expiration date, the expiration of the performer permit
will not be stayed.
(c)
Applications for renewal shall be acted on as provided herein for
action upon applications for permits.
(Ord. 1727 § 3, (2004))
(a)
An adult-oriented business regulatory permit or performer permit
may be suspended or revoked in accordance with the procedures and
standards of this section.
(b)
On determining that grounds for permit suspension or revocation exist,
the chief of police shall furnish written notice of the proposed suspension
or revocation to the permittee. Such notice shall set forth the time
and place of a hearing, and the ground or grounds upon which the hearing
is based, the pertinent code sections, and a brief statement of the
factual matters in support thereof. The notice shall be mailed, postage
prepaid, addressed to the address of the permittee on file with the
chief of police, 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 chief of police,
but at a minimum shall include the following:
(1)
All parties involved shall have a right to offer testimonial, documentary,
and tangible evidence bearing on the issues; may be represented by
counsel; and shall have the right to confront and cross-examine witnesses.
(2)
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.
(3)
Any hearing under this section may be continued for a reasonable
time for the convenience of a party or a witness as determined by
the chief of police.
(c)
A permittee may be subject to suspension or revocation of the permit,
or be subject to other appropriate regulatory action, for any of the
following causes arising from the acts or omissions of a business
regulatory permittee, or an employee, agent, partner, director, stockholder,
or manager of the permittee 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 or County
of San Mateo; or
(2)
The permittee, employee, agent, partner, director, stockholder, or
manager of the permittee 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:
(A)
Any act of unlawful sexual intercourse, sodomy, oral copulation,
or masturbation; or
(B)
Use of the establishment as a place where unlawful solicitations
for sexual intercourse, sodomy, oral copulation, or masturbation openly
occur; or
(C)
Any conduct constituting a criminal offense which requires registration
under Section 290 of the California Penal Code; or
(D)
The occurrence of acts of lewdness, assignation, or prostitution,
including any conduct constituting violations of Sections 315, 316,
or 318 or Subdivision b of Section 647 of the California Penal Code;
or
(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;
or
(F)
Any conduct prohibited by this chapter; or
(3)
Failure to comply with any condition imposed on the permittee related
to use of the business permit or performer permit by government action
whether under this chapter or another provision of federal, state,
county, or city law, ordinance, or regulation.
(d)
After holding the hearing in accordance with the provisions of this
section, if the chief of police finds and determines that there are
grounds for disciplinary action, the chief of police shall impose
one of the following as measured by the chief against the severity,
longevity, and repetition of the violations:
(Ord. 1727 § 3, (2004))
(a)
Upon denial of an application for an adult-oriented business regulatory
permit or a performer permit, or after denial of renewal of such a
permit, or after suspension or revocation of such a permit, the applicant
or the permittee may seek review of this administrative action within
15 days after notice thereof by filing with the city clerk a written
notice of appeal.
(b)
To be effective, the notice of appeal shall briefly state the grounds
relied upon for appeal.
(c)
The city clerk shall cause the matter to be set for hearing before
the city manager within 15 days from the date of receipt of the notice
of appeal, giving the appellant not less than five working days' notice
in writing of the time and place of hearing.
(d)
The hearing before the city manager shall be conducted in the same manner as the hearing provide pursuant to section 10.58.060 above, and the city manager affirm, modify, or reverse the decision of the chief of police. The findings and determination of the city manager made following this hearing shall be final and conclusive. Within five working days after the hearing, the city manager shall give written notice of the manager's findings and decision.
(e)
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 applicant or permittee.
(Ord. 1727 § 3, (2004))
The following provisions apply to all adult-oriented businesses
unless otherwise specified, and shall be deemed conditions of any
approved adult-oriented business regulatory permit. Failure to comply
with these requirements shall be grounds for revocation of an adult-oriented
business permit:
(a)
Maximum occupancy load, fire exits, aisles and fire equipment shall
be regulated, designed and provided in accordance with the fire code
and building regulations and standards adopted by the city.
(b)
No adult-oriented business shall be operated in any manner that permits
the observation of any material or activities depicting, describing
or relating to specified sexual activities or specified anatomical
areas from any public way or from any location outside the building
or area of such establishment. This provision shall apply to any display,
decoration, sign, show window, or other opening. No exterior door
or window on the premises shall be propped or kept open at any time
while the business is open, and any exterior windows shall be covered
with opaque covering at all times.
(c)
All off-street parking areas and premises entries of the adult-oriented
business shall be illuminated from dusk to closing hours of operation
with a lighting system that provides an average horizontal illumination
of one foot candle of light is maintained on the parking surface and
walkways. The required lighting level is established in order to provide
sufficient illumination of the parking areas and walkways serving
the adult-oriented business for the personal safety of patrons and
employees and to reduce the incidence of vandalism and criminal conduct.
The lighting shall be shown on the required sketch or diagram of the
premises.
(d)
The premises within which the adult-oriented business is located
shall provide sufficient sound-absorbing insulation so that noise
generated inside said premises shall not be audible anywhere on any
adjacent property or public right-of-way or within any other building
or other separate unit within the same building.
(e)
Except for those businesses also regulated by the California Department
of Alcoholic Beverage Control, an adult-oriented business shall be
open for business only between the hours of 8:00 a.m. and 12:00 a.m.
on any particular day.
(f)
The building entrance to an adult-oriented business shall be clearly
and legibly posted with a notice indicating that persons under 18
years of age are precluded from entering the premises. This notice
shall be constructed and posted to the satisfaction of the chief of
police or designee. No person under the age of 18 years shall be permitted
within the premises at any time. The permittee may elect to restrict
entry to persons of greater ages than 18 years, particularly if other
laws or regulations require such a restriction, and shall legibly
post the restrictions in accordance with this subsection.
(g)
All indoor areas of the adult-oriented business within which patrons
are permitted, except rest rooms, shall be open to view by the management
at all times.
(h)
Any adult-oriented business that is also or includes an adult arcade,
shall comply with the following provisions:
(1)
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager's station of every
area of the premises to which any patron is permitted access for any
purpose, excluding restrooms. Restrooms may not contain video reproduction
equipment. If the premises has two or more manager's stations designated,
then the interior of the premises shall be configured in such a manner
that there is an unobstructed view of each area of the premises to
which any patron is permitted access for any purpose from at least
one of the manager's stations. The view required in this subsection
must be direct line of sight from the manager's station; and
(2)
The view area specified in this section shall remain unobstructed
by any doors, walls, merchandise, display racks, or other materials
at all times. No patron is permitted access to any area of the premises
that has been designated as an area in which patrons will not be permitted;
and
(3)
No viewing room may be occupied by more than one person at any one
time; and
(4)
The walls or partitions between viewing rooms or booths shall be
maintained in good repair at all times, with no holes between any
two such rooms such as would allow viewing from one booth into another
or such as to allow physical contact of any kind between the occupants
of any two such booths or rooms; and
(5)
Customers, patrons, or visitors shall not be allowed to stand idly
by in the vicinity of any such video booths, or to remain in the common
area of such business, other than the restrooms, who are not actively
engaged in shopping for or reviewing the products available on display
for purchaser viewing. Signs prohibiting loitering shall be posted
in prominent places in and near the video booths; and
(6)
The floors, seats, walls and other interior portions of all video
booths shall be maintained clean and free from waste and bodily secretions.
Presence of human excrement, urine, semen or saliva in any such booths
shall be evidence of improper maintenance and inadequate sanitary
controls; repeated instances of such conditions are grounds for suspension
or revocation of the adult-oriented business Permit.
(i)
All interior areas of the adult-oriented business shall be illuminated
at a minimum of the following footcandles, minimally maintained and
evenly distributed at ground level:
|
Area
|
Foot-Candles
|
|---|---|
|
Bookstores and other retail establishments
|
20
|
|
Theaters and cabarets
|
5 (except during performances, at which times lighting shall
be at least 1.25 foot-candles)
|
|
Arcades
|
10
|
|
Motels/Hotels
|
20 (in public areas)
|
|
Modeling studios
|
20
|
(j)
The adult-oriented business shall provide and maintain separate rest room facilities for male patrons, customers, visitors, and employees and for female patrons, customers, visitors, and employees. Male patrons, customers, visitors, and employees shall be prohibited from using the rest rooms designated for females, and female patrons, customers, visitors, and employees shall be prohibited from using the rest rooms for males, except to carry out duties of repair, maintenance, and cleaning of the rest room facilities. The rest rooms shall be free from any adult material. Rest rooms shall not contain television monitors or other motion picture or video projection, recording, or reproduction equipment. The provisions of this subsection (k) shall not apply to an adult-oriented business that exclusively sells or rents adult material that is not used or consumed on the premises, such as an adult bookstore or adult video store, and that does not provide rest room facilities to its patrons, customers, visitors, or the general public.
(k)
The following additional requirements apply to adult-oriented businesses
providing live entertainment depicting specified anatomical areas
or involving specified sexual activities. These provisions are not
intended to conflict but only to supplement regulations or conditions
applied by the State Alcohol Beverage Control Commission when such
regulations or conditions are applied to the business:
(1)
No entertainer shall perform live entertainment for patrons of an
adult-oriented business except upon a stage at least 18 inches above
the level of the floor which is separated by a distance of at least
10 feet from the nearest area occupied by patrons, and no patron shall
be permitted within 10 feet of the stage while the stage is occupied
by an entertainer.
(2)
The adult-oriented business shall provide separate dressing room
facilities for entertainers that are exclusively dedicated to the
entertainers' use.
(3)
The adult-oriented business shall provide an entrance/exit for entertainers
that is separated by at least 30 feet from the entrance/exit used
by patrons.
(4)
The adult-oriented business shall provide access for entertainers
between the stage and the dressing rooms which is completely and physically
separated from the patrons. If such separate access is not physically
feasible, the adult-oriented business shall provide a minimum three
foot wide walk aisle for entertainers between the dressing room area
and the stage, with a railing, fence or other barrier separating the
patrons and the entertainers capable of and which actually results
in preventing any physical contact between patrons and entertainers.
(5)
No entertainer, either before, during or after performances, shall
have physical contact with any patron and no patron shall have physical
contact with any entertainer either before, during or after performances
by such entertainer. This subsection (5) shall only apply to physical
contact on the premises of the adult-oriented business.
(6)
Fixed rails at least 30 inches in height shall be maintained establishing
the separations between entertainers and patrons required by this
subsection (l).
(7)
No patron shall directly pay or give any gratuity to any entertainer
and no entertainer shall solicit any pay or gratuity from any patron.
(8)
No owner or other person with managerial control over an adult-oriented
business shall permit any person on the premises of the adult-oriented
business to engage in a live showing of the human male or female genitals,
pubic area or buttocks with less than a fully opaque coverage, and/or
the female breast with less than a fully opaque coverage over any
part of the nipple or areola and/or covered male genitals in a discernibly
turgid state. This provision may not be complied with by applying
an opaque covering simulating the appearance of the specified anatomical
part required to be covered.
(l)
Adult-oriented businesses shall employ security guards in order to
maintain the public peace and safety, based upon the following standards:
(1)
Adult-oriented businesses featuring live entertainment shall provide
at least one security guard at all times while the business is open.
If the occupancy limit of the premises is greater than 25 persons,
at least one additional security guard shall be on duty for each increment
of 25 persons.
(2)
Security guards for other adult-oriented businesses may be required
if it is determined by the chief of police that their presence is
necessary in order to prevent any of the conduct listed in this section
from occurring on the premises.
(3)
Security guards shall be charged with and expressly authorized to
prevent violations of law and enforce compliance by patrons, customers,
and visitors of the requirements of this chapter and the business
permit. Security guards shall be uniformed in such a manner so as
to be readily identifiable as a security guard by the public and shall
be duly licensed as a security guard as required by applicable provisions
of state law. Security guards shall promptly report any violation
of law to the Burlingame Police Department. No security guard required
pursuant to this section shall act as a door person, ticket seller,
ticket taker, admittance person, or sole occupant of the manager's
station while acting as a security guard.
(Ord. 1727 § 3, (2004))
Every permittee of an adult-oriented business that provides
live entertainment depicting specified anatomical areas or involving
specified sexual activities shall maintain a register of all persons
so performing on the premises and their performer permit numbers.
This register shall be available for inspection on the business premises
at all times during regular business hours by any peace officer or
the health officer.
(Ord. 1727 § 3, (2004))
(a)
Every adult-oriented business shall display at all times during business
hours, the business permit issued to the business together with any
conditions place on the permit pursuant to this chapter in a conspicuous
place so that the permit may be readily seen by all persons upon entering
the business.
(b)
The chief of police shall provide each adult-oriented business performer
required to have a performer permit pursuant to this chapter with
an identification card containing the name, address, photograph and
permit number of such performer. An adult-oriented business performer
shall have such card available for inspection by a peace officer or
the health officer at all times during which the person is on the
premises of an adult-oriented business.
(Ord. 1727 § 3, (2004))
(a)
It shall be unlawful for any permittee, operator, or other person
in charge of any adult-oriented business to employ or provide any
service for which it requires such permit to any person who is not
at least 18 years of age.
(b)
It shall be unlawful for any permittee, operator or other person
in charge of any adult-oriented business to permit any person who
is not at least 18 years of age to enter or remain within the adult-oriented
business.
(Ord. 1727 § 3, (2004))
An applicant or permittee shall permit representatives of the
police department, health department, fire department, community development
department, or other city departments or state or county agencies
to inspect the premises of an adult-oriented business for the purpose
of insuring compliance with the law and the development and performance
standards applicable to adult-oriented business, at any time it is
occupied or opened for business. A person who operates an adult-oriented
business or the business's agent or employee is in violation of the
provisions of this section if permission for such lawful inspection
of the premises is refused at any time it is occupied or open for
business.
(Ord. 1727 § 3, (2004); Ord. 1806 § 8, (2007))
The provisions of this chapter are not intended to be exclusive
and compliance with this chapter shall not excuse noncompliance with
any other regulations pertaining to the location, operation, or conduct
of businesses adopted by the city, County of San Mateo, State of California,
or United States.
(Ord. 1727 § 3, (2004))
It is unlawful for any owner, operator, manager, permittee or
other person in charge of or in control of an adult-oriented business
to allow any person to perform any live entertainment depicting specified
anatomical areas or involving specified sexual activities who is not
in possession of a valid, unrevoked and unsuspended adult-oriented
business performer permit.
(Ord. 1727 § 3, (2004))
All persons who possess an outstanding business license heretofore
issued for the operation of an adult-oriented business and all persons
required by this chapter to obtain an adult-oriented business performer
permit, must apply for and obtain such a permit within 90 days of
the effective date of this chapter. Failure to do so and continued
operation of an adult-oriented business, or the continued performances
depicting specified anatomical areas or specified sexual activities
in an adult-oriented business after such time without a permit shall
constitute a violation of this chapter.
(Ord. 1727 § 3, (2004))
If any section, subsection, subdivision, paragraph, sentence,
clause, or phrase in this chapter or any part thereof is for any reason
held to be unconstitutional or invalid or ineffective by any court
of competent jurisdiction, such decision shall not affect the validity
or effectiveness of the remaining portions of this chapter or any
part thereof. The city council hereby declares that it would have
passed each section, subsection, subdivision, paragraph, sentence,
clause, or phrase thereof irrespective of the fact that any one or
more subsections, subdivisions, paragraphs, sentences, clauses, or
phrases be declared unconstitutional, or invalid, or ineffective.
(Ord. 1727 § 3, (2004))
