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HomeMy WebLinkAbout71.191 ORDINANCE NO. 71-191 AN ORDINANCE ADDING ARTICLE 4.85 TO CHAPTER 4 OF THE SARATOGA CITY CODE RELATING TO REGULATION OF ADULT-ORIENTED BUSINESSES The City Council of the City of Saratoga does hereby ordain as follows: SECTION 1. FINDINGS. The City Council of the City of Saratoga hereby finds that: (a) The City Council, in adopting this ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary 'side effects of Adult-Oriented Business in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas 1983 ); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona Whittier, California ( 1978 ); Amarillo, Texas ( 1977 ); Cleveland, Ohio (1977 ); Los Angeles, California (1977 ). The City Council finds that these studies are relevant to the potential problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of Adult-Oriented Businesses, and more specifically finds that the these studies provide convincing evidence that: (1) Adult-Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas. (2) There is substantial evidence that an increase in crime tends to accompany, concentrate arotmd, and be aggravated by Adult-Oriented Businesses. (b) Based on the foregoing, the City Council of the City of Saratoga finds and determines that special regulation of Adult-Oriented Businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increase in crime rates. The need for such special regulations is based upon the recognition that Adult-Oriented Businegs have serious objectionable operational characteristics, thereby having a deleterious effect upon the adjacent areas. It is the purpose and intent of these special regulations to prevent such adverse secondary side effects. (c) In developing this ordinance, the City Council has been mindful of legal principles relating to regulation of Adult Oriented Businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions, but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of Adult Oriented Businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of Adult-Oriented Businesses, including but not limited to: Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976) (Reh. Denied 429 U.S. 873); Renton v. Pla.vtime Theaters. 475 U.S. 41 (1986) (Reh. Denied 475 U. S. 1132); FW/PBS. Inc. v. Dallas. 493 U.S. 215 ( 1990 ); Barnes v. Glenn Theater, 501 U.S. 560 ( 1991 ); United States Court of Appeals 9th Circuit decisions, including but not limited to: Topanga Press. et al. v. City of Los Angeles, 989 F.2d 1524 (1993); several California cases including but not limited to: City of National City v. Wiener. 3 Cal.4th 832 (1993); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); and City of Valle!o v. Adult Books, et al., 167 Cal.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of lacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On. Inc. v. ArlinSon (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993) 10 F.3d 123, International Eateries v. Broward COunty (1 lth Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074. The Council also takes legislative notice of the facts recited in the case of Key, Inc, v. .p County, 793 F.2d 1053 (1986), regarding how live adult entertainment results in adverse secondary effects and law enforcement problems. (d) The City Council finds the following, in part based upon its understanding of the documents and judicial decisions in the public record: ( I ) Evidence indicates that some dancers, models and entertainers, and other persons who publicly perform Specified Sexual Activities or publicly display Specified Anatomical Parts in Adult-Oriented Businesses (collectively referred to as 'performers') have been found to engage in sexual activities with patrons of Adult-Oriented Businesses on the site of the Adult-Oriented Businesses; (2) Evidence has demonstrated that performers employed by Adult-Oriented Businesses have been found to offer and provide private shows to patrons Who, for a price, are permitted to observe and participate with the performers in live sex shows; 2 (3) Evidence indicates that performers at Adult-Oriented Businesses have been found to engage in acts of prostitution with patrons of the establishment; (4) Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as a location for engaging in unlawful sexual activity; (5) As a result of the above, and the increase in incidents of AIDS and Hepatitis B, which are both sexually transmitted diseases, the City has a substantial interest in adopting regulations which will reduce, to the greatest extent possible, the possibility for the occurrence of prostitution and casual sex acts at Adult-Oriented Businesses. (e) Licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the community of Saratoga and to help assure that all operators of Adult-Oriented Businesses comply 'th reasonable regulations that minimize the adverse secondary effects which O~'~3~ically accompany the operation of such businesses. ' (f) It is not the intent of the City Council of the City of Saratoga in enacting this ordinance, or any provisions thereof to condone or legitimize the distribution of obscene material, and the City of Saratoga recognizes that state law prohibits the distribution of the obscene materials and expects and encourages law enforcement .officials to enforce state obscenity statutes against such illegal activities in the City of Saratoga. (g) Nothing in this ordinance 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 oY the exhibition or public display thereof. (h) In prohibiting public nudity in Adult-Oriented Businesses, the City Council does not intend to proscribe the communication of erotic messages or any other communicative element or act, but rather only to prohibit public nudity due to the secondary impacts associated with such public nudity; and (i) The City Council also finds, as a wholly independent basis, that it has a substantial public interest in preserving societal order and morality, and that such interest is furthered by a prohibition on public nudity; and (j) While the City Council desires to protect the rights conferred by the United States Constitution on Adult-Oriented Businesses, it does so in a manner that ensures the continued and orderly use and enjoyment of property within the City and diminishes, to the greatest extent feasible, those undesirable secondary effects which the aforementioned studies have shown to be associated with the development and operation of Aduli-Oriented Businesses; and (k) In enacting a nudity limitation, the City declares that the limitation is a regulatory licensing provision and not a criminal offense. The City has not provided a criminal penalty for a violation of the nudity limitation. The City adopts such a limitation only as a condition of issuance and maintenance of an Adult-Oriented Business permit issued pursuant to the City Code; and (1) The City Council finds that requiring separations between entertainers and patrons and preventing the exchange of money between entertainers and patrons lso reduces the likelihood of drug and sex transactions occurring in Adult-Oriented ~Businesses; and (m) Enclosed or concealed booths and dimly-lit areas within Adult-Oriented Businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmission of disease. Requirements that all indoor areas be open to view by management at all times, and that adequate lighting be provided are necessary in order to reduce the opportunity for, and therefore the incidence of illegal conduct within Adult-Oriented Businesses, and to facilitate the inspection of the interior of the premises thereof by law enforcement personnel, and (n) The City Council finds that Adult-Oriented Business Permits shall be denied to applicants with recent criminal convictions for sexually-related offenses due · to the evidenced lack of commitment to enforcement of prohibitions with respect to sexual offenses and due to the high incidence of recidivism with respect to sexual crimes. SECTION 2. Article 4.85 entitled "Adult-Oriented Businesses" is hereby added to Chapter 4 of the Saratoga City Code, to read as follows: 4 "Article 4.85. ADULT-ORIENTED BUSINESSES SEC. 4.85.010. LEGISLATIVE PURPOSE. It is the purpose of this Article to regulate Adult-Oriented Business in order to promote the health, safety, morals, and general welfare of the citizens of the City. The provisions of this Artide have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including adult-oriented materials. Simila~y, it is not the intent nor effect of this ordinance to restrict or deny access by adults to adult-oriented materials protected by the First Amendment, 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 ordinance to condone or legitimize the distribution of obscene material. SEC. 4.85.015. DEFINITIONS. For the purposes of this Article the following words and phrases shall have the meanings respectively ascribed to them by this section: (a) Adult arcade. The term "adult arcade" as used in this Article, is an establishment where, for any form of consideration, one or more still or motion picture projectors, or similar machines, for viewing by five (5) or fewer persons each, are used to show films, computer generated images, motion pictures, video cassettes, slides or other photographic reproductions thirty (30) percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities of specified anatomical areas. (b) Adult bookstore. The term "adult bookstore" as used in this Article, is an establishment that has thirty (30) percent or more of its stock in books, magazines, periodicals or other printed matter, or of photographs, films, motion pictures, video cassettes, slides, tapes, records or other form 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. (c) Adult cabaret. The term "adult cabaret" as used in this Article, means a nightdub, restaurant, or similar business establishment which: (1) regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or (2) which regularly features persons who appear semi-nude; and/or (3) video films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty (30) percent 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. (d) Adult hotel/motel. The term "adult hotel/motel" as used in this Article, means a hotel or motel or similar business establishment offering public accommodations for any form of consideration which, ( 1 ) provides patrons with closed-circuit television transmissions, films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty (30) percent 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 (2) rents, leases, or lets any room for less than a six (6) hour period, or rents, leases, or lets any single room more than twice in a 24- hour period. (e) Adult motion picture theater. The term "adult motion picture theater" as used in this Article, 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 thirty (30) percent 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. (f) Adult theater. The term "adult theater" as used in this Article, means a theater, concert hall, auditorium, or similar establishment which, 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. 6 (g) Adult-Oriented Business Operator. The term "Adult-Oriented Business Operator" (hereinafter "operator") as used in this Article 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. (h) Applicant. The term "Applicant" as used in this Article, means a person who is required to file an application for a permit under this chapter, including an individual owner, a managing partner, officer of a corporation, or any other operator, a manger, employee, or agent of an Adult-Oriented Business. (i) Bar. The term "Bar" as used in this Article, means any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises. (j) City Manager. The term "City Manager" as used in this Article, means the City Manager of the City of Saratoga or the authorized representatives thereof. (k) Computer Site. The term "computer site" as used in this Article, means a business which provides, for pecuniary compensation, monetary or other consideration, live performances that are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities and/or which regularly feature persons who appear semi-nude and which such performances can be viewed by computer or any other type of electronic device. (1) Distinguished or characterized by an emphasis upon. The term "distinguished or characterized by an emphasis upon," as used in this Article, means the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films "which 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. See, Pringle v. City of Covina, 115 Cal.App.3 151 (1981). (m) Figure model. The term "Figure model" as used in this Article, means any person who, for pecuniary compensation, considera- tion, hire or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted. (n) Health officer. The term "Health Officer" as used in this Article, means the "City Manager". Any of the powers or duties to be exercised or approvals to be granted by the Health Officer under this Article may be delegated by the City Manager, in whole or in part, to the County Health Department or to such other authorized agents as the City Manager may designate. (o) Modeling studio. The term "modeling studio" as used in this Article, means a business which 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." (p) Nudity or a state of nudity. The term "Nudity or a state of nudity" as used in this Article, 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. (q) Operate an Adult-Oriented Business. The term "operate an adult- oriented business" as used in this Article, 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. (r) Permittee. The term "Permittee" as used in this Article, means the person to whom an Adult-Oriented Business Permit is issued. (s) Person. The term "Person" as used in this Article, means any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character. (t) Regularly Features. The term "regularly features" as used in this Article with respect to an adult theater or adult cabaret, means a regular and substantial course of cor~duct. 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 (2) or more occasions within a thirty (30) day period; three (3) or more occasions within a sixty (60) day period; or four (4) or more occasions within a one hundred and eighty (180) day period, shall to the extend permitted by law be deemed to be a regular and substantial course of conduct. (u) Semi-nude. The term "Semi-Nude" as used in this Article, 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. (v) Specified anatomical areas. The term "specified anatomical areas" as used in this Article, means any of the following: (1) Less than completely and opaquely covered human (i) genitals or pubic region; (ii) buttocks; and (iii) female breast below a point immediately above the top of the areola; (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered; 9 (3) Any device, costume or covering that simulates any of other body parts included in subdivisions (1) or (2) above. (w) Specified sexual activities. The term "specified sexual activities" as used in this Article, means any of the following, whether performed directly or indirectly through clothing or other coveting: ( 1 ) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast; (2) Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy; (3) Masturbation, actual or simulated; (4) Excretory functions as part of or in connection with any of the other activities described in subdivision (1) through (3) of this subsection. SEC. 4.85.020. PERMITS REQUIRED. (a) It shall be 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 of Saratoga, the operation of an Adult-Oriented Business unless the person first obtains and continues to maintain in full force and effect a permit from the City of Saratoga as herein required. (Adult-Oriented Business Regulatory Permit) (b ) It shall be unlawful for any persons 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 a permit from the City of Saratoga as herein required. (Adult-Oriented Business Performer Permit) SEC. 4.85.025. ADULT-ORIENTED BUSINESS REGULATORY PERMIT - APPLICATIONS. 10 (a) Adult-Oriented Business Regulatory permits are nontransferable, except in accordance with Section 4.85.040. Therefore, 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 eighteen (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 California, 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. (4) If the applicant has had any convictions within the last five (5) years. of the offenses set forth in Section 4.85.045(d)(5). (b) If the applicant is an individual, he or she shall sign the application. If the applicant is other than an individual, an officer of the business entity or an individual with a ten (10) percent 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 Permit is requested and the proposed address where the Adult-Oriented Business will operate, plus the name and 11 addresses of the owners and lessors of the Adult-Oriented Business site. (e) The address to which notice of action on the application is to be mailed. (O The names of all employees, independent contractors, and other persons who will perform at the Adult-Oriented Business, who are required by Section 4.85.045 to obtain an Adult-Oriented Business Performer Permit (for ongoing reporting requirements see Section 4.85.045(a). (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 piepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior the premises to an accuracy of plus or minus six (6) inches. (h) A certificate and straight-line drawing prepared within thirty (30) days prior to application depicting the btfilding and the portion thereof to be occupied by the Adult-Oriented Business. (i) A diagram of the off-street parking areas and premises entries of the Adult-Oriented Business showing the location of the lighting · system required by Section 4.85.070(c) and (i)' (j) If the City Manager determines that the applicant has completed the application improperly, the City manager shall promptly notify the applicant of such fact and, on request of the applicant, grant the applicant an extension of time of ten (10) days or less to complete the application prope~y. In addition the applicant may request an extension, not to exceed ten (10) days, of the time for the City Manager to act on the application. The time period for granting or denying a 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 State or City permits or licenses does not exempt the applicant from the 12 requirement of obtaining an Adult-Oriented Business Regulatory Permit. (1) Along with the filing of the application, the applicant shall pay a filing fee, as established by resolution adopted by the City Council from time to time, which shall not be refundable. SEC. 4.85.030. INVESTIGATION AND ACTION ON APPLICATION. (a) Upon receipt of a completed application and payment of the application and permit fees, the City Manger 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 forty-five (45) days of receipt of the completed application, the City Manager 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 City Manager shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. (2) If the application is denied, the City manager shall attach to the application a statement of the reasons for denial. (3) If the application is granted, the City manager shall attach to the application an Adult-Oriented Business Regnlatory Permit. (4) The application as granted or denied and the Permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the address stated in the application. (c) The City Manager shall grant the application and issue the Adult- Oriented Business Regnlatory permit upon findings that the applicant has met all of the development and performance 13 standards and requirements of Section 4.85.070, unless the application is denied for one or more of the reasons sets forth in Section 4.85.035. The Permittee shall post the Permit conspicuously in the Adult-Oriented Business premises. (d) If the City Manager grants the application or if the City Manager neither grants nor denies the application within thirty (30) days after it is stamped as received (except as provided in Section 4.85.025 (j)), the applicant may begin operating the Adult- Oriented Business for which the Permit was sought, subject to strict compliance with the development and performance standards and requirements of Sections 4.85.070. SEC. 4.85.035. PERMIT DENIAL. The City Manager shall deny the application for any of the following reasons: (a) The building, structure, equipment, or location used by the business for which an Adult-Oriented Business Regulatory permit is required do not comply with the requirements and standards of the health, zoning, fire and safety laws of the City and the State of California, or with the locational or development and performance standards and requirements of these regulations. (b ) The applicant, his or her employee, agent, partner, director, officer, shareholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for an Adult Business Regulatory Permit. (c) An applicant is under eighteen (18) years of age. (d) The required application fee has not been paid. (e) An applicant has been convicted of an offense specified in Section 4.85.045(d)(5). Each Adult-Oriented Business Regulatory permit shall expire one ( 1 ) year from the date of issuance, and may be renewed only by filing with the City Manager a written request for renewal, accompanied by the 14 Annual Permit Fee and a copy of the Permit to be renewed. The request for renewal shall be made at least thirty (30) days before the expiration date of the Permit. When made less than thirty (30) days before the expiration date, the expiration of the Permit will not be stayed. Applications for renewal shall be acted on as provided herein for action upon applications for Permits. SEC. 4.85.040. TRANSFER OF ADULT-ORIENTED BUSINESS REGULATORY PERMITS. (a) A permittee shall not operate an Adult-Oriented Business under the authority of an Adult-Oriented Business Regulatory P~rmit at any place other than the address of the Adult-Oriented Business stated in the application for the Permit. (b) A permittee shall not transfer ownership or control of an Adult- Oriented Business or transfer an Adult-Oriented Business Regulatory Permit to another person unless and until the transferee obtains an amendment to the Permit from the City Manager stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the City Manager in accordance with Section 4.85.025, accompanies the application with a transfer fee in an amount set by resolution of the City Council, and the City Manager determines in accordance with Section 4.85.030 that the transferee would be entitled to the issuance of an original Permit. (c) No Permit may be transferred when the City Manager has notified the permittee that the permit has been or may be suspended or revoked. (d) Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and the Permit shall be deemed revoked. SEC. 4.85.045. ADULT-ORIENTED BUSINESS PERFORMER PERMIT. (a) No person shall engage in or participate in any live performance 15 depicting specified anatomical areas or involving specified sexual activities in an Adult-Oriented Business, without a valid Adult- Oriented Business performer permit issued by the City. All persons who have been issued an Adult-Oriented Business Regulatory Permit shall promptly supplement the information provided as part of the application for the Permit required by Section 4.85.025, with the names of all Performers required to obtain an Adult-Oriented Business Performer Permit, within thirty (30) days of any change in the information originally submitted. Failure to submit such changes shall be grounds for suspension of the Adult-Oriented Business Regulatory Permit. (b) The City Manager shall grant, deny and renew Adult Business Performer Permits. (c) The application for a Permit shall be made on a form provided by the City Manager. An original and two copies of the completed and sworn permit application shall be filed with the City Manager. (d) The completed application shall contain the following information and be accompanied by the following documents: (1) The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant; (2) Age, date and place of birth; (3) Height, weight, hair and eye color; (4) Present residence address and telephone number; (5) Whether the applicant has ever been convicted of: (i) Any of the offenses set forth in Sections 315, 316, 266a, 266b, 266c, 266e, 266g, 266h, 266i, 647(a), 647(b) and 647(D) of the Califomia Penal Code as those sections now exist or may hereafter be amended or tenumbered. 16 (ii) The equivalent of the aforesaid offenses outside the State of California. (6) Whether such person is or has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other jurisdiction to engage in prostitution in such other jurisdiction. If any person mentioned in this subsection has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other State to engage in prostitution, a Statement shall be submitted giving the place of such registration, licensing or legal authorization, and the inclusive dates during which such person was so licensed, registered, or authorized to engage in prostitution. (7) State driver's license or identification number; (8) Satisfactory written proof that the applicant is at least eighteen (18) years of age; (9) The applicant's fingerprints on a form provided by the Sheriffs Department, and a color photograph clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant; (10) If the application is made for the purpose of renewing a Permit, the applicant shall attach a copy of the Permit to be renewed. (e) The completed application shall be accompanied by a non- refundable application fee. The amount of the fee shall be set by resolution adopted by the City Council, from time to time. (f) Upon receipt of an application and payment of the application fees, the City Manager shall immediately stamp the application as received and promptly investigate the application. (g) If the City Manager determines that the applicant has completed the application improperly, the City Manager shall promptly notify the applicant of such fact and grant the applicant an extension of time of not more than ten (10) days to complete the application 17 properly. In addition, the applicant may request an extension, not to exceed ten (10) days, of the time for the City Manger to act on the application. The time period for granting or denying a Permit shall be stayed during the period in which the applicant is granted an extension of time. SEC. 4.85.050. INVESTIGATION AND ACTION ON APPLICATION. (a) Within ten (I0) days after receipt of the properly collected application, the City manager shall grant or deny the application and so notify the applicant as follows: (1) The City Manager shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. (2) If the application is denied, the City Manager shall attach to the application a statement of the reasons for denial. (3) If the application in granted, the City Manager 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 City Manager shall grant the application and issue the Permit unless the application is denied for one or more of the reasons set forth in subsection (d) of this section. (c) If the City Manager grants the application or if the City Manager neither grants nor denies the application within ten (10) days after it is stamped as received (except as provided in Section 4.85.045(g), the applicant may begin performing in the capacity for which the Permit was sought. (d) The City Manager shall deny the application for any of the following reasons: 18 ( 1 ) The applicant has knowingly made any false, misleading, or fraudulent statement of a material fact in the application for a Permit or in any report or document required to be filed with the application; (2) The applicant is under eighteen (18)' years of age; (3) The Adult-Oriented Business Performer Permit is to be used for performing in a business prohibited by State or City law. (4) The applicant has been registered in any state as a prostitute. (5) The applicant has been convicted of any of the offenses enumerated in Section 4.85.0~45 (d) (5) 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. A Permit may be issued to any person convicted of the described crimes if the conviction occurred more than five (5) years prior to the date of the application. (e) Each Adult-Oriented Business Performer Permit shall expire one ( 1 ) year from the date of issuance and may be renewed only by filing with the City Manager a written request for renewal, accompanied by the application fee and a copy of the Permit to be renewed. The request for renewal shall be made at least thirty (30) days before the expiration date of the Permit. When made less than thirty (30) days before the expiration date, the expiration of the Permit will not be stayed. Applications for renewal shall be acted on as provided herein for application for Permits. SEC. 4.85.055. SUSPENSION OR REVOCATION OF ADULT- ORIENTED BUSINESS REGULATORY PERMITS AND ADULT- ORIENTED BUSINESS PERFORMER PERMITS. An Adult-Oriented Business Regulatory Permit or Adult-Oriented Business Performer Permit may be suspended or revoked in accordance 19 with the procedures and standards of this Section. (a) On determining that grounds for Permit revocation exist, the City Manager 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 last known address of the Permittee, or shall be delivered to the Permittee personally, at least ten (10) days prior to the hearing date. Hearings shall be conducted in accordance with procedures established by the City Manager, 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 tight to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which retainable persons are accustomed to rely in the conduct Of serious affairs. Any heating under this Section may be continued for a reasonable time for the convenience of a party or a witness. The City Manager's decision may be appealed in accordance with Section 4.85.06,0: ~' (b) A Permittee may be subject to suspension or revocation of a Permit, or be subject to other appropriate disciplinary action, for any of the following causes arising from the acts or Omissions of the Permittee, or an Employee, agent, partner, director, stockholder, or manager of an Adult-Oriented Business: ( 1 ) The Permittee has knowingly made any false, misleading or fraudulent statement of material facts in the application for a Permit, or in any report or record required to be filed with the City. (2) The Permittee, employee, agent, partner, director, stockholder, or manager of an Adult-Oriented Business- has 20 knowingly allowed or permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the Adult-Oriented Business, or in the case of an Adult-Oriented Business Performer, the permittee has engaged in one of the activities described below while on the premises of an Adult-Oriented Business: (i) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation. (ii) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur. (iii) Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code. (iv) The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Sections 315,316, or 318 or Subdivision b of Section 647 of the California Penal Code. (v) Any act constituting a violation of provisions 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. (vi) Any conduct prohibited by this chapter. (3) Failure to abide by an disciplinary action previously imposed by an appropriate City official. (c) After holding the hearing in accordance with the provisions of this Section, if the City Manager finds and determines that there are grounds for disciplinary action, based upon the severity of the violation, the City Manager shall impose one of the following: ( I ) A warning; 21 (2) Suspension of the Permit for a specified period not to exceed six months; (3) Revocation of the Permit. SEC. 4.85.065. APPEAL OF DENIAL. SUSPENSION OR REVOCATION. After denial of an application for an Adult-Oriented Business Regulatory Permit or an Adult-Oriented Business Performer Permit, or after denial of renewal of a Permit, or suspension or revocation of a Permit, the applicant or person to whom the Permit was granted may appeal through the following procedures: (a) Request for appeal hearing. The applicant shall file a written request for an appeal hearing, which states the specific grounds on which the decision of the City Manager to deny, suspend, or revoke the permit is contested, within ten (I0) days after service of the notice of the written decision, by deposit of the notice, addressed to the holder of the permit, by certified mail and/or by hand delivery. At the time of submitting the written request for an appeal hearing, the appellant shall pay an appeal heating fee, set forth in the City fee schedule. If the applicant or person to whom the permit was granted does not request an appeal hearing with the ten (10) day period, no further notice is required and the action will become final. (b) Appeal hearing. An appeal hearing shall be conducted as provided for in Section 4-55.085 and 4-55. 150 of this Code. (c) The decision of the Board of Appeals shall inform the applicant of the right to a prompt judicial review and that any judicial action appealing the Board of Appeals decision shall be commenced within thirty (30) calendar days of the date of the service of the decision. SEC. 4.85.070. ADULT-ORIENTED BUSINESS DEVELOPMENT AND PERFORMANCE STANDARDS. (a) Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated, designed and provided in accordance with the fire and building regulations and standards adopted by the City of Saratoga. 22 (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 premise entries of the adult- oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one ( 1 ) foot candle of light on the parking surface and/or 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) The building entrance to an Adult-Oriented Business shall be dea~y and legibly posted with a notice indicating that persons under eighteen (18) years of age are precluded from entering the premises. Said notice shall be constructed and posted to the satisfaction of the Community Development Director or designee. No person under the age of eighteen (18) years shall be permitted within the premises at any time. (f) All indoor arenas of the Adult-Oriented Business within which patrons are permitted, except rest rooms, shall be open to view by the management at all times. 23 (g) Any Adult-Oriented Business which is also an Adult arcade, shall comply with the following provisions: ( I ) The interior of the premises shall be con figured 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 managers 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 stations. The view required in this subsection must be direct line of sight from the managers station. (2) The view area specified in section (5) shall remain unobstructed by ax~y door, walls, merchandise, display racks, or other materials at all times. No patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted. (3) No viewing room may be occupied by ~nore than one person at any one time. (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. (5) Customers, patrons or visitors shall not be allowed to stand idly by in the vicinity of any such video booths, or from 1 remaining 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. Sigt~s prohibiting loitering shall be 24 posted in prominent places in and near the video booths. (6) The fl6ors, 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 may justify suspension or revocation of the owner and operators permit to conduct the adult-oriented establishment. (i) All areas of the Adult-Oriented Business shall be illuminated, at a minimum, with the following foot-candles, evenly distributed at ground level: Area Foot-Candles Bookstores and other retail 20 establishments 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 and 10 computer sites (k) The Adult-Oriented Business shall provide and maintain separate rest room facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the rest room(s) for females, and female patrons and employees shall be prohibited from using the rest room(s) 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 Oriented Material. Rest rooms 25 shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph shall not apply to an Adult- Oriented Business which deals exclusively with sale or rental of Adult Material which is not used or consumed on the premises, such as an Adult Bookstore or Adult Video Store, and which does not provide rest room facilities to its patrons or the general public. ( 1 ) The following additional requirements shall pertain to Adult- Oriented Businesses providing live entertainment depicting Specified Anatomical Arena or involving Specified Sexual Activities, except for businesses regulated by the Alcoholic Beverage Control Commission and those businesses that are computer sites: ( 1 ) No person shall perform live entertainment for patrons of an Adult-Oriented Business except upon a stage at least eighteen (18) inches above the level of the floor which is separated by a distance of at least ten (10) feet from the nearest area occupied by patrons, and no patron shall be permitted within ten (10) feet of the stage while the stage is occupied by an entertainer. "Entertainer" shall mean 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, perform live entertainment for patrons of an Adult- Oriented Business. (2) The Adult-Oriented Business shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use. (3) The Adult-Oriented Business shall provide an entrance/exit for entertainers which is separate 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 separated from the patrons. If such 26 separate access is not physically feasible, the Adult- Oriented Business shall provide a minimum (3) 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 shall only apply to physical contact on the premises of the Adult-Oriented Business. (6) Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between entertainers and patrons required by this subsection. (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 (as that term is defined herein) 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 fully opaque coverage over any part of the nipple or areoh 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. (m) Adult-Oriented Businesses shall employ security guards in order to maintain the public peace and safety, based upon the following standards: 27 ( 1 ) Adult-Oriented Businesses featuring live entertainment, except for computer sites, shall provide at least one ( 1 ) security guard at all times while the Business is open. If the occupancy limit of the premises is greater than thirty-five (35) persons, an additional security guard shall be on duty. (2) Security guards for other Adult-Oriented Businesses may be required if it is determined by the City Manager that their presence is necessary in order to prevent any of the conduct listed in Section 4.85.055(b)(2)(i) - (vi) from occurring on the premises. (3) Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations as well as controlling behavior and reporting all criminal offenses to the Police Department. 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 the State. No security guard required pursuant to this subsection 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. The City Manager reserves the right to determine the number of guards and may require that the number of guards be increased if necessary. The foregoing applicable requirements of this Section shall be deemed conditions of Adult-Oriented Business Regulatory Permit approvals, and failure to comply with every such requirement shall be grounds for revocation of the Permit issued pursuant to these regulations. SEC. 4.85.075. REGISTER AND PERMIT NUMBER OF EMPLOYEES. (a) Every permittee of an Adult-Oriented Business which provides live entertainment depicting specified anatomical areas or involving specified sexual activities must maintain a register of all persons so performing on the premises and their permit numbers. 28 Such register shall be available for inspection during regular business hours by any police officer or health officer of the City of Saratoga. SEC. 4.85.080. DISPLAY OF PERMIT AND IDENTIFICATION CARDS. (a) Every Adult-Oriented Business shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such Adult-Oriented Business in a conspicuous place so that the same may be readily seen by all persons entering the Adult-Oriented Business. (b) The City Manager shall provide each Adult-Oriented Business Performer required to have a Permit pursuant to the chapter, with an identification card containing the name, address, photograph and permit number of such performer. (c) An Adult-Oriented Business Performer shall have such card available for inspection at all times during which such person is on the premises of the Adult-Oriented Business. SEC. 4.85.085. EMPLOYMENT OF AND SERVICES RENDERED TO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS PROHIBITED. (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 eighteen (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 to enter, or remain within the Adult-Oriented Business, any person who is not at least eighteen (18) years of age. SEC. 4.85.090. INSPECTION. An applicant or Permittee shall permit representatives of any City Department or County Agency to inspect the premises of an Adult-- Oriented Business for the purpose of insuring compliance with the law 29 and the development and performance standards applicable to Adult- Oriented Businesses, at any time it is occupied or opened for business. A person who operates an Adult-Oriented Business or his or her agent or employee is in violation of the provision of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business. SEC. 4.85.095. REGULATIONS NONEXCLUSIVE. The provisions of this article regulating Adult-Oriented Businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the City Council of the City of Saratoga. SEC. 4.85. 100. EMPLOYMENT OF PERSONS WITHOUT PERMITS UNLAWFUL. It shall be unlawful for any owner, operator, manager, or permittee in charge of or in control of an Adult-Oriented Business which provides live entertainment depicting specified anatomical arena or involving specified sexual activities to allow any person to perform such entertainment who is not in possession of a valid, unrevoked Adult- Oriented Business Performer Permit. SEC. 4.85.105. TIME LIMIT FOR FILING APPLICATION FOR PERMIT. All persons who possess an outstanding businesses license heretofore issued for the operation of an Adult-Oriented Businesses and all persons required by this chapter to obtain an Adult-Oriented Businesses Performer Permit, must apply for and obtain such a permit within ninety (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 arena or specified sexual activities in an Adult-Oriented Businesses after such time without a permit shall constitute a violation of this chapter." 3O SECTION 3, SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this ordinance 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 ( 1 ) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective. SECTION 4. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption. The above and foregoing Ordinance was regularly introduced and after the waiting time required by law, was thereafter passed and adopted at a regular meeting -[ the City Council of Saratoga held on the 7th day of Apri 1 . 1999, by the llowing vote. AYES: Councilmembers Baker, Streit, Mehaffey, Vice Mayor gogosian, Mayor Shaw NOES: None AJ~SENT: None ' Ma~,or ATTEST: City Cler~ April 7, 1998 Rev. February 23, 1999 Rev: April 15, 1999 MSR:pcp:apn:edw O~WPDVvlNRSWN273\ORD99XADLTBUS.99 31