It is the purpose and intent of this chapter to require certain background checks on nonperformers who work in adult businesses during regular business hours to promote the health, safety, and general welfare of the city. The goals of these nonperformer employee provisions are (1) to protect minors by requiring that all nonperformers regularly employed be over the age of 18 years; (2) to assure the correct identification of persons working in adult businesses; (3) to enable the city to deploy law enforcement resources effectively; and (4) to detect and discourage the involvement of crime in adult businesses by precluding the employment of nonperformers with certain sex-related convictions within a prior time period. It is neither the intent nor the effect of these regulations to invade the privacy of adult business employees or to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor the effect of these regulations to restrict or deny access by adults to communicative materials or to deny access by the distributors or exhibitors of adult businesses to their intended lawful market. Nothing in these regulations is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any city ordinance or any statute of the state of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof.
The definitions contained in Chapter 5.44 BMC shall govern for purposes of these regulations.
(Ord. 09-01 § 4)
A. 
No individual who works as a nonperformer in an adult business shall be employed, hired, engaged, or otherwise retained in an adult business without first submitting to a background check as provided below.
B. 
Individuals who wish to work as nonperformers in an adult business shall file a written, signed, and verified application or renewal application on a form provided by the chief of police. Such application shall contain the following information:
1. 
The employee applicant's legal name and all used aliases.
2. 
Date of birth.
3. 
Driver's license or identification number and state of issuance or other state identification which confirms the name of the applicant.
4. 
The license applicant's fingerprints on a Livescan form provided by the Benicia police department. Any fees for fingerprints shall be paid by the applicant. Fingerprints shall be taken within six months of the date of application.
5. 
Whether the nonperformer employee applicant has pled guilty or pled nolo contendere or been convicted of an offense classified by this or any other state as a sex-related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less 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. Any applicant who admits to a recent prior sex-related offense as specified above shall be denied employment in an adult business during the applicable time period for disqualification called out herein.
C. 
The information provided above in subsection (B) of this section which is personal, private, confidential or the disclosure of which could expose the nonperformer employee to the risk of harm will not be disclosed under the California Public Records Act. Such information includes, but is not limited to, the applicant's mailing address, date of birth, age, driver's license number and Social Security number. The city council in adopting the application system set forth herein has determined in accordance with Government Code Section 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy, confidentiality and/or security interests are protected. The city clerk shall cause the above-mentioned information to be redacted from any copy of a completed application form made available to any member of the public.
D. 
The completed application shall be accompanied by a nonrefundable application fee and an annual license fee. The amount of such fees shall be as set forth in the schedule of fees established by resolution from time to time by the city council.
E. 
The chief of police or his/her designee must be available during normal working hours Monday through Friday to accept adult business nonperformer employee applications. The chief of police or his/her designee shall determine if an application is complete within five business days. If the chief of police determines that the application is incomplete, the chief of police shall immediately inform the applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Upon receipt of a completed adult business nonperformer employee application in which the applicant denies any recent conviction of a sexual offense as specified in subsection (B)(5) of this section and payment of the license fee specified in subsection (D) of this section, the chief of police or his/her designee shall permit temporary employment of such applicant in an adult business that possesses a valid adult business license.
(Ord. 09-01 § 4; Ord. 09-04 § 1)
A. 
Upon submission of a completed nonperformer work application by an individual who wishes to work in an adult business during regular business hours, payment of license fees, and issuance of a temporary nonperformer application for work pursuant to BMC § 5.46.020, the chief of police or his/her designee shall immediately stamp the application "Received" and in conjunction with city staff, including members of the police department, shall promptly investigate the information contained in the application to determine whether the nonperformer employee applicant may be permitted to work in an adult business pursuant to the disqualifying terms of BMC § 5.46.020(B)(5).
B. 
Investigation shall not be grounds for the city to unilaterally delay in reviewing a completed application. The chief of police's determination of any violation of BMC § 5.46.020(B)(5) shall be made within 10 business days from the date the nonperformer employment application is filed with the chief of police. In the event the chief of police is unable to complete the investigation within 10 business days, he/she shall promptly notify the nonperformer employment applicant. In no case shall the investigation exceed 30 days.
C. 
The chief of police shall render a written decision to authorize or bar a nonperformer employee's employment in a validly licensed adult business during regular business hours within the foregoing 10-day time period set forth in subsection (B) of this section. Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing 10-day period or 30-day period if extended pursuant to subsection (B) of this section, at the address provided by the applicant in the application. Notice of such decision shall also be mailed first class postage prepaid or hand delivered to the owner or management of any adult business a nonperformer employee has applied to for employment within the time frame specified above for notification to the applicant.
D. 
The chief of police shall 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 for work in an adult business during regular business hours is denied, the chief of police shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the applicant may appeal the denial to the city manager. The city manager or a designated hearing officer shall conduct a hearing as described in BMC § 5.46.040.
E. 
The chief of police shall grant the application for nonperformer work in an adult business unless the application is denied based on one of the grounds set forth in subsection (F) of this section.
F. 
The chief of police shall deny the application of a nonperformer to work in an adult business based on any of the following grounds:
1. 
The nonperformer work applicant has made a false, misleading, or fraudulent statement of material fact in the application for work in a validly licensed adult business during regular business hours.
2. 
The nonperformer work applicant is under 18 years of age.
3. 
The nonperformer seeks work in a business prohibited by laws of the state or city or in a business that does not have a valid adult business license.
4. 
The nonperformer work applicant has pled guilty, or pled nolo contendere or been convicted of an offense classified by this or any other state as a sex-related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less 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.
G. 
Failure of the chief of police or his/her designee to render a decision on the application of a nonperformer for work in an adult business within the time frames established by this section shall be deemed to constitute an approval of the nonperformer work application.
H. 
Each nonperformer work applicant must annually renew his/her work application with the chief of police or his/her designee by a written request for work renewal. If said application conforms to the previously approved application and there has been no change with respect to the applicant having been convicted of any crime classified by this or any other state as a sex-related offense, the chief of police or his/her designee shall renew the applicant's availability for work in an adult business during regular business hours for one year. Any plea to or conviction of a sex-related offense requires the renewal application to be set for hearing before the chief of police in accordance with the provisions of this section. The request for renewal shall be made at least 30 days before the expiration date of the license. Applications for renewal shall be acted upon as provided herein for action upon an initial application for nonperformer work in an adult business during regular business hours. The chief of police's denial of a renewal application is subject to the hearing provisions of BMC § 5.46.040.
(Ord. 09-01 § 4; Ord. 09-04 § 2)
A. 
On determining that grounds exist to deny a nonperformer work in an adult business during regular business hours, the chief of police or his/her designee shall furnish written notice of the proposed action to the applicant. Such notice shall set forth the time and place of a hearing before the city manager or a designated hearing officer and the ground or grounds upon which the hearing is based, the pertinent Benicia 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 applicant, or shall be delivered to the applicant personally, at least 10 days prior to the hearing date.
B. 
On determining that grounds exist to deny work to a nonperformer in an adult business during regular business hours, the chief of police or his/her designee shall furnish written notice of the proposed action to the applicant. The decision of the chief of police shall be appealable to the city manager by filing a written request for a hearing with the city clerk within 15 days following the day of mailing of the chief of police's decision and paying the fee for appeals provided under this code. All such appeals shall be filed with the city clerk and shall be public records. The city manager shall issue a notice which shall set forth the time and place of a hearing before the city manager or a designated hearing officer which is within 30 days from the date the appeal was filed and the ground or grounds upon which the hearing is based, the pertinent Benicia 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 applicant, or shall be delivered to the license holder personally, at least 10 days prior to the hearing date.
C. 
The applicant shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The city manager or designated hearing officer shall not be bound by the formal rules of evidence. 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 licensee. Extensions of time or continuances sought by an applicant/appellant shall not be considered delay on the part of the city or constitute failure by the city to provide for prompt decisions on denial of an employment application of a nonperformer employee.
D. 
The application/request of a nonperformer to work in an adult business may be revoked, based on any of the following causes arising from the acts or omissions of the applicant:
1. 
The applicant has made any false, misleading, or fraudulent statement of material fact in the application for work as a nonperformer in an adult business during regular business hours.
2. 
The applicant has pled guilty, pled nolo contendere or been convicted of an offense classified by this or any other state as a sex-related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less 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.
3. 
Failure to comply with the operating standards of Chapter 5.44 BMC or the requirements of this chapter.
E. 
After holding the hearing in accordance with the provisions of this section, if the city manager or designated hearing officer finds and determines that there are grounds to deny a nonperformer work in an adult business during regular business hours, the city manager or designated hearing officer shall deny the applicant work in an adult business establishment. After holding the hearing in accordance with the provisions of this section on renewal of a work application, the city manager or designated hearing officer shall decide to sustain the decision, modify the decision or order the decision stricken and issue such order as the city manager or designated hearing officer finds is supported by the entire record. The city manager or designated hearing officer shall render a written decision that shall be hand delivered or overnight mailed to the applicant and any adult business where the applicant is working within four working days of the hearing. The city manager or designated hearing officer's failure to render such a decision within this time frame shall constitute approved renewal of the applicant's work during regular business hours in a validly licensed adult business.
F. 
If the continuing work of a nonperformer is denied pursuant to this section, the applicant may reapply for work with an adult business 12 months after the date of such denial.
G. 
The decision of the city manager or designated hearing officer shall be final.
(Ord. 09-01 § 4)
Any violation of any of these provisions regulating adult business nonperformer work applications is hereby declared to constitute a public nuisance and may be abated or enjoined.
(Ord. 09-01 § 4)
The provisions of this chapter regulating adult business nonperformer employment applications are not intended to be exclusive, and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the adult business licensing provisions as adopted by the city council of Benicia.
(Ord. 09-01 § 4)