HomeMy WebLinkAbout2005-06-28; City Council; NS-760; Regulation of Adult Businesses and Performers...ORDINANCE NO. NS- 760
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA AMENDING CHAPTERS
8.09, I1 28, AND 21.43, AND ADDING CHAPTERS 8.60 AND
8.70 TO THE CARLSBAD MUNICIPAL CODE REGULATING
THE LICENSING AND OPERATIONAL STANDARDS FOR
ADULT BUSINESSES AND LICENSING PROCEDURES FOR
ADULT PERFORMERS
WHEREAS, the City of Carlsbad, pursuant to its police powers delegated
to it by the California Constitution, has the authority to enact laws which promote the
public health, safety and general welfare of its citizens; and
WHEREAS, the City Council has determined that there is substantial
evidence that an increase in crime tends to accompany, concentrate around, and be
aggravated by adult businesses, including but not limited to an increase in the crimes of
narcotics distribution and use, prostitution, pandering, and violence against persons and
properties; and
WHEREAS, case law including a recent 2005 opinion of the Federal Ninth
Circuit Court of Appeals in Gammoh v, La Habra has determined that it is appropriate
for local public entities to establish regulations for the licensing and operational
standards for adult businesses and licensing procedures for adult performers so long as
they are limited to regulations necessary to address the adverse secondary effects of
such adult businesses, including reasonable time, place and manner regulations,
without unnecessarily suppressing and infringing upon expressive activities protected
by the First Amendment of the United States and California Constitutions; and
WHEREAS, it is the conclusion of the City Council that the exercise of this
authority by enactment of an urgency ordinance is the most effective means of
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preventing the adverse secondary effects of adult businesses and their consequential
degradation including increase in crime, blight in neighborhoods, and the increased
threat of the spread of sexually transmitted diseases, and that therefore the City of
Carlsbad has the duty to enact measures immediately for the protection of the health,
safety and welfare of the general public; and
WHEREAS, the City of Carlsbad is currently without a properly
enforceable ordinance regulating the licensing and operational standards for adult
businesses and licensing procedures for adult performers; and
WHEREAS, the City Council has determined that it would be highly
detrimental to the welfare of the community to be without the protection of such
regulations and it is necessary to enact constitutionally enforceable provisions
regulating the licensing and operational standards for adult businesses and licensing
procedures for adult performers while, at the same time recognizing and preserving the
constitutional rights of the owners, performers and patrons of such businesses; and
WHEREAS, this ordinance is adopted pursuant to Government Code
section 36937 allowing the adoption of such urgency ordinance to take effect
immediately to ensure the immediate preservation of the public peace, health, safety
and welfare in the City of Carlsbad; and
NOW, THEREFORE, the City Council of the City of Carlsbad does find:
A. The City Council finds that it is necessary and appropriate to amend
Chapters 21.43, 11.28, and 8.09 and add Chapters 8.60 and 8.70 to the Carlsbad
Municipal Code to add, refine and update the provisions and licensing and operational
standards for adult businesses and to establish a licensing process for the licensing of
adult performers. The public health, safety and welfare of the City of Carlsbad and its
residents require the enactment of this Urgency Ordinance and such operating
standards for adult businesses in order to: (I) mitigate and reduce the judicially
recognized potential adverse secondary effects of adult businesses, including but not
limited to crime, the prevention of blight in neighborhoods and the increased threat of
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the spread of sexually transmitted diseases; (2) protect the quality of life and
neighborhoods in the City, the City’ s retail and commercial trade, and local property
values, and minimize the potential for nuisances related to the operation of adult
businesses; and (3) protect the peace, welfare and privacy of persons who own,
operate and/or patronize adult businesses.
The City Council, in adopting this Urgency Ordinance, takes legislative
notice of the existence and content of the following studies and reports concerning the
adverse secondary effects of adult businesses in other cities: Garden Grove, California
(1 991); Tucson, Arizona (1 990); Seattle, Washington, Department of Construction and
Land Use (1989); Austin, Texas, Office of Land Development Services (1986);
Oklahoma City, Oklahoma (1 986); Indianapolis, Indiana, Department of Metropolitan
Development (1 984); Houston, Texas, City Council Report (1 997); Beaumont, Texas
(1 982); Minnesota Crime Prevention Center, Inc., Minneapolis (1 980); Phoenix, Arizona
(1 979); Los Angeles, California, Department of City Planning (1 977); Amarillo, Texas,
Planning Department (1977); and Cleveland, Ohio (1977); New York, New York (1994);
Newport News, Virginia (1996); Times Square, New York City (1994); Whittier,
California (1978); A Methodological Critique of the Linz-Paul Report: A Report to the
San Diego City Attorney’s Office (2003); Sexually Oriented Businesses: An Insider’s
View - Testimony of David Sherman before the Michigan House Committee on Ethics
and Constitutional Law (2000); and Summaries of Key Reports Concerning the
Negative Secondary Effects of Sexually Oriented Businesses, by Louis Comus Ill
(2001). The City Council finds that these studies and reports are relevant to the
problems addressed by the City in enacting this Urgency Ordinance to regulate the
adverse secondary effects of adult businesses and more specifically finds that these
studies provide convincing evidence that:
There is substantial evidence that an increase in crime tends to
accompany, concentrate around, and be aggravated by adult businesses, including but
not limited to an increase in the crimes of narcotics distribution and use, prostitution,
pandering, and violence against persons and property. The studies from other cities
establish by convincing evidence that adult businesses that are not regulated with
operating standards often have a deleterious effect on nearby businesses and
residential areas, causing, among other adverse secondary effects, an increase in
crime and a decrease in property values.
Regulations for adult businesses should be developed to prevent
deterioration and/or degradation of the vitality of the community before the problem
exists, rather that waiting for problems to be created.
In developing this Urgency Ordinance, the City Council is mindful of legal
principles relating to regulation of adult businesses, and the City Council 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 businesses. The City Council has considered decisions of
the United States Supreme Court regarding local regulation of adult businesses,
including but not limited to: City of Littleton, Colorado v. Z.J. Gifts 0-4, 541 U.S. 744,
124 S.Ct. 2219, 159 L.Ed.2d 84 (2004); City of Los Angeles v. Alameda Books, 535
U.S. 425, 122 S. Ct. 1728 (2002); City of Erie v. Pap’s A.M. (“Kandyland’~, 529 U.S.
277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Barnes v. Glen Theatre, lnc., 501 U.S.
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560, 11 I S.Ct. 2456, 115 L.Ed.2d 504 (1991); FWPBS, lnc. v. City of Dallas, 493 U.S.
215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); City of Renton v. Playtime Theatres, lnc.,
475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); and Young v. American Mini
Theaters, lnc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); decisions of the
United States Court of Appeals for the Ninth Circuit, including but not limited to:
Gammoh v. La Habra, 395 F.3d I114 (9th Cir. 2005), ptn. for rehearing denied and
opinion amended 402 F.3d 875; Dream Palace v. County of Maricopa, 384 F.3d 990
(9th Cir. 2004); Wodd Wde Video. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004);
Center for Fair Public Policy v. Maricopa County, 336 F.3d I153 (9th Cir. 2003);
Diamond v. City of Taff, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531 U.S. 1072
(2001); lsbell v. City of San Diego, 258 F.3d 11 08 (9th Cir. 2001); Young v. City of Simi
Valley, 216 F.3d 807 (9th Cir. 2000), cert. denied 531 U.S. 1104 (2001); Lim v. City of
Long Beach, 217 F.3d 1050 (9th Cir. 2000), cert. denied 121 S.Ct. 1189 (2001); Baby
Tam & Co., lnc. v. City of Las Vegas ("Baby Tam 1'7, 154 F.3d 1097 (9th Cir. 1998);
Baby Tam & Co., lnc. v. City of Las Vegas ("Baby Tam ll"), 199 F.3d 11 11 (9th Cir.
2000); Baby Tam & Co., lnc. v. City of Las Vegas ("Baby Tam lll'3, 247 F.3d 1003 (9th
Cir. 2001); 4805 Convoy, lnc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999);
Topanga Press, lnc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied
51 1 U.S. 1030 (1994); Kev, lnc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986);
Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053
(2000); several California cases, including but not limited to: Tily B., lnc. v. City of
Newport Beach, 69 Cal.App.4th 1 (1 998); City of National City v. Wiener, 3 Cal.4th 832
(1993), cert. denied 510 U.S. 824; People v. Superior Court (Lucero) 49 Cal.3d 14
(1 989); Department of Alcoholic Beverage Control v. Alcoholic Beverage Control
Appeals Board of California ("Vicary"), 99 Cal.App.4th 880 (2002); City of Vallejo v.
Adult Books, 167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); and
People vwhitey, lnc., 2005 WL 477967 (2005); and other federal cases, including but
not limited to: G.M. Enterprises v. Town of St. Joseph, 350 F.3d 631, 639 (7th Cir.
2003); SOB, lnc. v. County of Benfon, 317 F.3d 856, 863 (8th Cir. 2003); Hang On, lnc.
v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); Mitchell v, Commission on Adult
Entertainment, IO F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jacksonville,
973 F.2d 1255 (5th Cir. 1992), cert. denied 507 U.S. 1030 (1993); lnternafional Eateries
v. Broward County, 941 F.2d 1157 (11th Cir. 1991), cert. denied503 U.S. 920 (1992);
and Star Satellite, lnc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986).
The City Council also finds that locational criteria alone do not adequately
protect the health, safety, and general welfare of the citizens of the City, and thus
certain requirements with respect to the ownership, operation and licensing of adult
businesses are in the public interest. In addition to the findings and studies conducted
in other cities regarding increases in crime rates, decreases in property values and the
blighting of areas in which such businesses are located, the City Council takes
legislative notice of the following: (1) the facts recited in the case of Kev, lnc. v. Kitsap
County, 793 F.2d 1053 (9th Cir. 1986), regarding how live adult entertainment results in
secondary effects such as prostitution, drug dealing, and other law enforcement
problems, and (2) the facts and holding of the case of Gammoh v. La Habra, 395 F.3d
1114 (9th Cir. 2005), ptn. for rehearing denied and opinion amended 402 F.3d 875,
wherein the Ninth Circuit recognized that off-stage performances by performers who
also perform nude and/or semi-nude at an adult establishment can cause the same
D.
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secondary effects as other activities documented in studies and case law regarding
adult establishments, even if the performer is clothed and the establishment does not
serve alcohol.
E. The City Council further finds the following, based in part upon its
understanding of the documents, including but not limited to the experiences of
Carlsbad, the declarations of police officers in Fullerton and an ABC Investigator setting
forth their experiences, police reports of investigations conducted by La Habra,
Anaheim and Orange police officers, and judicial decisions in the public record:
1. Evidence indicates that some dancers, models, entertainers,
performers, and other persons who publicly perform specified sexual activities or
publicly display specified anatomical areas in adult businesses (collectively referred to
as "performers") have been found to engage in sexual activities with patrons of adult
businesses on the site of the adult business.
Evidence has demonstrated that performers employed by adult
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.
Evidence indicates that performers at adult businesses have been
found to engage in acts of prostitution with patrons of the establishment.
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 locations for engaging in
unlawful sexual activity.
As a result of the above, and the increase in incidents of HIV,
AIDS, and hepatitis B, which are sexually transmitted or blood borne diseases, the City
has a substantial interest in adopting regulations that will reduce the possibility for the
occurrence of prostitution and unlawful sex acts at adult businesses in order to protect
the health, safety, and well-being of its citizens. The City finds this is relevant to
Carlsbad and the need to regulate the secondary effects of adult businesses within the
com m u n ity .
The public health, safety, welfare, and morals of all persons in the
City must be protected by the establishment of standards to diminish the possibility of
infection of contagious diseases.
The City Council is cognizant of the specific danger from the sexually
transmitted disease AIDS, which is currently irreversible and fatal. The City Council
takes legislative notice of the AIDS Surveillance Report dated July 31, 2001 by the
County of San Diego Health and Human Services Agency, Division of AIDS and
Community Epidemiology ("AIDS Surveillance Report") and the report entitled San
Diego County HIVIAIDS Status dated June 2000, also by the County of San Diego
Health and Human Services Agency ("AIDS Status Report"). According to the AIDS
Surveillance Report, 10,876 AIDS cases were reported throughout the County since
1981 through July 2001, 150 of which were reported in 2001 and 420 of which were
reported in 2000. The City also takes legislative notice of the County of Orange
Communicable Disease Summary 1998, County of Orange Health Care Agency, issued
January 2000 ("Communicable Disease Summary"). The Communicable Disease
Summary states that 5,149 cases of AIDS were reported in Orange County between
1982 and 1998. In 1998, 305 cases of AIDS were reported in Orange County, an 8%
increase over the 283 reported cases in 1997. As of December 1998, an estimated
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2,345 residents of Orange County were living with AIDS, over double the number six
years prior. As of December 2000, an estimated 5,700 Orange County residents were
living with HIV or AIDS.
The City is also concerned with preventing the spread of other sexually
transmitted diseases such as syphilis, gonorrhea and chlamydia and hepatitis B. The
Communicable Disease Summary further indicates that between 1994 and 1998, 21 1
cases of syphilis were reported, 3,094 cases of gonorrhea were reported, and 17,349
cases of chlamydia were reported in the County. The City also takes legislative notice
of the STD Fact Sheet of 2000 by the County of San Diego Health and Human Services
Agency ("STD Fact Sheet") and the Sexually Transmitted Diseases Annual Summary,
San Diego County, 1993-1 994, by the Sexually Transmitted Disease Control Program,
dated December 1995 ("STD Annual Summary"). According to the STD Fact Sheet
and STD Annual Summary, 1109 cases of syphilis were reported throughout the County
between 1990 and 2000, 27 of which were reported in 2000. With respect to
gonorrhea, 27,890 cases of gonorrhea were reported between 1990 and 2000, 1797 of
which were reported in 2000. The number of cases of chlamydia reported within the
County dramatically exceeds the number of reported cases of syphilis and gonorrhea:
74,079 cases were reported between 1990 and 2000, 8637 of which were reported in
2000. It should also be noted that according to the AIDS Status Report, numerous
studies have shown that sexually transmitted diseases such as syphilis, gonorrhea and
chlamydia facilitate the transmission of HIV.
The City Council has a reasonable basis to believe that the experiences of both
San Diego County and Orange County as to these sexually transmitted or blood borne
diseases are relevant to the experiences of Carlsbad.
H. In recognition of these negative secondary effects generated by live adult
entertainment, a number of courts have upheld distance limitations between performers
and patrons, prohibitions against physical contact between performers and patrons, and
precluded direct exchange of monies between performers and patrons at adult
businesses that provide live entertainment, including, but not limited to: Garnmoh v. La
Habra, 395 F.3d 11 14 (9th Cir. 2005), petition for rehearing denied (April 1 , 2005); TiIy
B. v. City of Newport Beach, 69 Cal.App.4th 1 (1999); Colacurcio v. City of Kent, 163
F.3d 545 (9th Cir. 1998); BSA, Inc. v. King County, 804 F.2d 1104, 11 10-1 1 (9th Cir.
1986); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); DLS, Inc. v. City of
Chattanooga, 894 F. Supp. 1140 (E.D. Tenn. 1995); Parker v. Whiffield County, 463
S.E.2d 116 (Ga. 1995); and Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir.
1995). Courts have found that dancers who perform nude or semi-nude on stage at
adult cabarets are the same individuals who then move off stage to offer lap dances,
couch dances, or other similar off stage performances. Garnrnoh v. La Habra, 395 F.3d
11 14 (9th Cir. 2005), petition for rehearing denied (April 1, 2005). Therefore, Carlsbad
reasonably believes it is necessary to impose distance limitations between performers
and patrons and prohibit physical contact between performers and patrons during all
performances, whether on or off stage, in order to guard against the documented
secondary effects.
I. The City Council believes that prohibiting physical contact between
performers and patrons at adult businesses, requiring separate entrances for
performers from those used for patrons, requiring separate restrooms for opposite
sexes, prohibiting performers from soliciting payment from patrons, and prohibiting the
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direct payment to performers by patrons are a reasonable and effective means of
addressing the legitimate governmental interests of preventing prostitution, the spread
of sexually transmitted diseases, and drug transactions. The case law and studies
serve as a reasonable basis to establish this link.
In considering appropriate operational regulations for adult businesses,
the City Council finds that:
1. Preventing the exchange of money between performers and
patrons also reduces the likelihood of drug and sex transactions occurring in adult
businesses.
2. Requiring separations between performers and patrons precludes
them from being within earshot to communicate and thereby reduces the likelihood that
such persons will negotiate narcotics sales and/or transact sexual favors within the
adult business.
3. Enclosed or concealed booths and dimly lit areas within adult
businesses greatly increase the potential for misuse of the premises, including unlawful
conduct of a type which facilitates transmission of disease. Requiring all indoor areas
to be open to view by management at all times and adequate lighting to be provided
reduces the opportunity for, and therefore the incidence of illegal conduct within adult
businesses, and further facilitates the inspection of the interior of the premises thereof
by law enforcement personnel.
The City Council recognizes and relies on the findings set
forth in the 1986 Attorney General’s Report on Pornography in support of this
Ordinance including, but not limited to, its recommendations that local governments ban
certain features of video booths that facilitate carnal sexual encounters. A copy of the
Attorney General’s Report on Pornography is available for public review at the City
Clerks office.
With respect to booths, these findings include the following:
The inside walls of the booth are typically covered with graffiti and messages, usually of
a sexual nature and consisting of telephone numbers, names, requests and offers for
sex acts, anatomical descriptions, and sketches. Some booths also contain a chart
used as an appointment schedule that is utilized to schedule appointments for sex acts
that take place in that particular booth. In some instances, this arrangement has been
used for the solicitation of prostitutes. Many of these booths are equipped with a hole
in the side wall between the booths to allow patrons to engage in anonymous sex
including both oral and anal sex acts. Inside the booths, the floors and walls are often
wet and sticky with liquid or viscous substances, including semen, urine, feces, used
prophylactics, gels, saliva, or alcoholic beverages. The City concludes, based in part
on the description of the illicit sexual activity as noted within the Attorney General’s
Report, that the presence of closed doors is likely to lead to the above described
secondary effects.
c. Likewise, the City Council recognizes and relies on the
findings set forth in the May 1990 study conducted by the City of Tucson in support of
this Urgency Ordinance including, but not limited to, the following findings with respect
to booths: Holes were present in the walls of adjoining booths within adult entertainment
establishments. These holes were used by male patrons to facilitate sex acts with the
occupant of the neighboring booth. The Council reasonably believes that the Tucson
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experience, along with the Attorney General’s Report, is relevant to the problems
associated with adult facilities in Carlsbad.
d. The City Council finds that requiring that adult booths be
configured in such a manner so that there is an unobstructed view from the manager’s
station and prohibiting closed, concealed, or unobstructed booths that are occupied by
no more than one person at a time reduces the secondary effects associated with
closed booths. Specifically, the provisions pertaining to booths are necessary to
eliminate the masturbation and sexual activity that are known to occur in closed booths
and which present significant health and safety concerns with respect to communicable
diseases, including AIDS. The City Council takes further note of the Ninth Circuit‘s
decision in Ellwest Stereo Theatres, Inc. v. Weiner, 681 F.2d 1243 (9th Cir. 1982) and
its finding that there is no constitutional right to unobserved masturbation in a public
place.
The City Council also finds the establishment of an adult business
regulatory licensing process, operational standards for adult businesses and performer
licensing provisions are legitimate and reasonable means of ensuring that:
1. Operators of and performers at adult businesses comply with the
City’s regulations;
2. The recognized adverse secondary impacts of a proposed adult
business are mitigated;
3. Adult business operators have specific guidelines with respect to
the manner in which they can operate an adult business;
4. The applications for adult business regulatory licenses and
performer licenses are handled fairly and expeditiously; and
5. The correct identification of performers working in adult businesses
occurs so that the City is able to effectively deploy resources and detect and discourage
prostitution and criminal activity from occurring in and around adult businesses.
L. The City finds that law enforcement agencies maintain separate
databases for drug-related convictions, prostitution convictions and sex crime offender
registration, and that knowledge of an applicant‘s true identity is necessary to conduct
background checks in such databases. Carlsbad’s Police Services Department has
determined, based upon the experience of its police officers and its past experiences,
along with other law enforcement agencies, that fingerprinting is the only reliable
method for determining a person’s true identity for the purposes of background checks.
The City Council recognizes the possible harmful effects on children and
minors exposed to the effects of adult businesses and recognizes the need to enact
regulations which will minimize and/or eliminate such exposure. The City Council takes
legislative notice of the Penal Code provisions authorizing local governments to
regulate matter that is harmful to minors (i.e., Penal Code § 313 et seg.). The City
Council further takes legislative notice of the cases that recognize that protection of
minors from sexually explicit materials is a compelling government interest, including
Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996)’ cert. denied 520 U.S. 11 17 (1997)
and Berry v, City of Santa BanSara, 40 Cal.App.4th 1075 (1 995).
While the City Council is obligated to protect the rights conferred by the
United States Constitution to adult businesses, it does so in a manner that ensures the
continued and orderly use and development of property within the City and diminishes,
to the greatest extent feasible, those undesirable adverse secondary effects which the
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above mentioned studies have shown to be associated with the operation of adult
businesses.
Operating standards are a legitimate and reasonable means of ensuring
that adult businesses are conducted in a manner so as to minimize their adverse
secondary effects and to help assure that such operators and businesses comply with
reasonable regulations related to such requirements to minimize and control problems
associated with such businesses and thereby protect the health, safety, and welfare of
Carlsbad residents, protect citizens from increased crime, preserve the quality of life,
preserve property values and the character of surrounding neighborhoods and
businesses, and deter the spread of urban blight. The operational requirements
contained in this Ordinance do not unreasonably restrict the establishment or operation
of constitutionally protected adult businesses in the City of Carlsbad.
The City Council, in adopting operational standards, recognizes that these
standards do not preclude reasonable alternative avenues of communication. For
example, the closing hours requirement means that adult businesses are free to
operate seven (7) days a week for sixteen (16) hours per day. The City Council takes
note of the proliferation of adult material on the Internet, satellite television, direct
television, CDs, DVDs, and that these various media provide alternative avenues of
communication. The City Council also considers and relies on published decisions
examining the proliferation of communications on the Internet. (Reno v. American Civil
Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) [the principle
channel through which many Americans now transmit and receive sexually explicit
communication is the Internet]; Anheuser-Busch v. Schmoke, 101 F.3d 325 (4th Cir.
1996), cert. denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a First
Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on
billboards acknowledging that the Internet is one available channel of communication];
U.S. v, Hockings, 129 F.3d 1069 (9th Cir. 1997); see also U.S. v. Thomas, 74 F.3d 701
(6th Cir. 1996), cert. denied 519 U.S. 820 [recognizing the Internet as a medium for
transmission of sexually explicit material in the context of obscenity prosecutions].) The
emergence of the Internet brings with it a virtually unlimited additional source of adult
oriented sexual materials available to interested persons in every community with a
mere keystroke. An adult business no longer has to be "actually" physically located in a
city to be available in the community.
The City Council has also determined that a closing hours requirement
promotes the reduction of deleterious secondary effects from adult facilities and
reasonably relies on prior court decisions on the need for closing hours including
Mitchell v. Comm. on Adulf Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lady J.
Lingerie, Inc. v. Cify of Jacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997); Lady J.
Lingerie, lnc. v. Cify of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); and Cify of
Colorado Springs v. 2354 lnc., 896 P.2d 272 (1995).
Licensing or regulatory permits, and operating standards are a legitimate
and reasonable means of ensuring that adult businesses are located in places and
conducted in a manner so as to minimize their adverse secondary effects and to help
assure that such operators, businesses, licensees and permittees comply with
reasonable regulations related to such requirements to minimize and control problems
associated with such businesses and thereby protect the health, safety, and welfare of
Carlsbad residents, protect citizens from increased crime, preserve the quality of life,
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preserve property values and the character of surrounding neighborhoods and
businesses, and deter the spread of urban blight.
It is not the intent of the City Council of the City of Carlsbad in enacting
this Urgency Ordinance or any provision thereof to condone or legitimize the distribution
of obscene material, and the City and its Council recognize that State law prohibits the
distribution of obscene materials and expect and encourage law enforcement officials to
enforce State obscenity statutes against such illegal activities in Carlsbad.
The City Council does not intend to regulate in any area preempted by
California law, including but not limited to, regulation of obscene speech, nor is it the
intent of the City Council to preempt regulations of the State Alcoholic Beverage Control
("ABC").
U. Nothing in this Urgency 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, or the exhibition or public display thereof.
The City Council finds that licensing and operational standards are a
legitimate and reasonable means of accountability to ensure that operators of adult
businesses comply with reasonable regulations and to ensure that operators do not
knowingly allow their establishments to be used as places of illegal sexual activity or
solicitation.
This ordinance is an urgency ordinance necessary for the immediate
preservation of the public peace, health and safety, which is justified by the fact that
these permitting and operating standards need to be in place immediately or the siting
of a new adult facility could detrimentally impact the City' s ability to protect the public
from the pernicious secondary effects of unregulated operation or under-regulated adult
use businesses.
S.
T.
V.
W.
SECTION 2. That Title 21, Chapter 21.43, Sections 21.43.010,
21.43.035, 21.43.040, 21.43.050, 21.43.080, 21.43.090, 21.43.100, 21.43.1 IO, and
21.43.130 of the Carlsbad Municipal Code are hereby repealed in their entirety. These
sections contain items that do not fit within the definition of "zoning" activities under the
Government Code and are appropriately included in the licensing and permitting
provisions being adopted herein.
SECTION 3. That Title 8 of the Carlsbad Municipal Code is amended by
the addition of Chapter 8.60, "Adult Business Licenses and Operating Regulations" to
read as follows:
Ill
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IJI
"CHAPTER 8.60
ADULT BUSINESS LICENSES AND OPERAT
§ 8.60.010 Purpose 5 8.60.020 Definitions
§ 8.60.030 Operating Standards
§ 8.60.040 Adult Business License 5 8.60.050 Felony Convictions
NG REGULATIONS
§ 8.60.060 5 8.60.070
§ 8.60.080 9 8.60.090
§ 8.60.100
§ 8.60.110
§ 8.60.120
§ 8.60.130 Q 8.60.140
Adult Business License Applications
Transfer of Adult Business License
Appeal Procedures
Suspension or Revocation of Adult Business License
Employment of and Services Rendered to Persons Under
the Age of Eighteen (18) Years Prohibited; Twenty-one (21)
if Liquor is Served
Regulations Non-Exclusive
Violations
Public Nuisance
Severability
8.60.01 0 Purpose.
It is the purpose and intent of this Chapter to regulate the operations of adult
businesses, which tend to have judicially recognized adverse secondary effects on the
community, including, but not limited to, increases in crime in the vicinity of adult
businesses; decreases in property values in the vicinity of adult businesses; increases
in vacancies in residential and commercial areas in the vicinity of adult businesses;
interference with residential property owners' enjoyment of their properties when such
properties are located in the vicinity of adult businesses as a result of increases in
crime, litter, noise, and vandalism; and the deterioration of neighborhoods. Special
regulation of these businesses is necessary to prevent these adverse secondary effects
and the blighting or degradation of the neighborhoods in the vicinity of adult businesses
while at the same time protecting the First Amendment rights of those individuals who
desire to own, operate or patronize adult businesses.
It is, therefore, the purpose of this Article to establish reasonable and uniform
operational standards for adult businesses.
8.60.020 Definitions.
In addition to any other definitions contained in the Municipal Code, the following
words and phrases shall, for the purpose of this Chapter and Chapters 11.28 and 21.43
be defined as follows, unless it is clearly apparent from the context that another
meaning is intended. Should any of the definitions be in conflict with any current
provisions of the Municipal Code, these definitions shall prevail.
"Adult Arcade" shall mean a business establishment to which the public is
permitted or invited and where coin, card or slug operated or electronically, electrically
or mechanically controlled devices, still or motion picture machines, projectors, videos,
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holograms, virtual reality devices or other image-producing devices are maintained to
show images on a regular or substantial basis, where the images so displayed are
distinguished or characterized by an emphasis on matter depicting or describing
"specified sexual activities" or "specified anatomical areas." Such devices shall be
referred to as "adult arcade devices."
"Adult Retail Store" shall mean a business establishment having as a
regular and substantial portion of its stock in trade, "adult oriented material."
"Adult Booth/lndividual Viewina Area" shall mean a partitioned or partially
enclosed portion of an adult business used for any of the following purposes:
(A) Where a live or taped performance is presented or viewed, where the performances and/or images displayed or presented are distinguished or
characterized by their emphasis on matter depicting, describing, or relating to "specified
sexual activities" or "specified anatomical areas";
(4) "Adult Business" shall mean:
(2)
(3)
(B)
(A) A business establishment or concern that as a regular and
substantial course of conduct operates as an adult retail store, adult motion picture
theater, adult arcade, adult cabaret, adult motel or hotel, adult modeling studio; or
A business establishment or concern which as a regular and
substantial course of conduct offers, sells or distributes "adult oriented material" or
"sexually oriented merchandise," or which offers to its patrons materials, products,
merchandise, services or entertainment characterized by an emphasis on matters
depicting, describing, or relating to "specified sexual activities" or "specified anatomical
areas" but not including those uses or activities which are preempted by State law.
"Adult Cabaret" shall mean a business establishment (whether or not
serving alcoholic beverages) that features "adult live entertainment."
"Adult Cabaret Dancer" shall mean any person who is an employee or
independent contractor of an "adult cabaret" or "adult business" and who, with or
without any compensation or other form of consideration, performs as a
sexually-oriented dancer, exotic dancer, stripper, go-go dancer or similar dancer whose
performance on a regular and substantial basis focuses on or emphasizes the adult
cabaret dancer's breasts, genitals, and or buttocks, but does not involve exposure of
"specified anatomical areas" or depicting or engaging in "specified sexual activities."
"Adult cabaret dancer" does not include a patron.
"Adult Hotel/Motel" shall mean a "hotel" or "motel" (as defined in the
Municipal Code) that is used for presenting on a regular and substantial basis images
through closed circuit television, cable television, still or motion picture machines,
projectors, videos, holograms, virtual reality devices or other image-producing devices
that are distinguished or characterized by the emphasis on matter depicting or
describing or relating to "specified sexual activities" or "specified anatomical areas."
"Adult Live Entertainment" shall mean any physical human body activity,
whether performed or engaged in, alone or with other persons, including but not limited
to singing, walking, speaking, dancing, acting, posing, simulating, wrestling or
pantomiming, in which: (1) the performer (including but not limited to topless and/or
bottomless dancers, go-go dancers, exotic dancers, strippers, or similar performers)
exposes to public view, without opaque covering, "specified anatomical areas"; and/or
Where "adult arcade devices" are located.
(B)
(5)
(6)
(7)
(8)
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(2) the performance or physical human body activity depicts, describes, or relates to
"specified sexual activities" whether or not the specified anatomical areas are covered.
(9) "Adult Modeling Studio" shall mean a business establishment which
provides for any form of consideration, the services of a live human model, who, for the
purposes of sexual stimulation of patrons, displays "specified anatomical areas" to be
observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by
persons paying for such services. "Adult Modeling Studio" does not include schools
maintained pursuant to standards set by the Board of Education of the State of
California.
(1 0) 'Adult Motion Picture Theater" shall mean a business establishment, with
or without a stage or proscenium, where, on a regular and substantial basis and for any
form of consideration, material is presented through films, motion pictures, video
cassettes, slides, laser disks, digital video disks, holograms, virtual reality devices, or
similar electronically-generated reproductions that is characterized by the depiction or
description of "specified sexual activities" or "specified anatomical areas."
'Yldult Oriented Maferiar' shall mean accessories, paraphernalia, books,
magazines, laser disks, compact discs, digital video disks, photographs, prints,
drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or
electronically generated images or devices including computer software, or any
combination thereof that is distinguished or characterized by its emphasis on matter
depicting, describing or relating to "specified sexual activities" or "specified anatomical
areas." "Adult oriented material" shall include "sexually oriented merchandise."
above) as a new business;
business," to any "adult business";
business";
(I 1)
(12) "Establishment of An Adult Business" shall mean any of the following:
(A) The opening or commencement of any "adult business" (as defined
(B) The conversion of an existing business, whether or not an "adult
(C) The addition of any "adult business" to any other existing "adult
(D) The relocation of any "adult business"; or
(E) Physical changes that expand the square footage of an existing "adult business" by more than ten percent (1 0%).
"OwnerLicense Holder" shall mean any of the following: (1) the sole
proprietor of an adult business; (2) any general partner of a partnership that owns and
operates an adult business; (3) the owner of a controlling interest in a corporation or
L.L.C. that owns and operates an adult business; or (4) the person designated by the
officers of a corporation or the members of an L.L.C. to be the license holder for an
adult business owned and operated by the corporation.
"Performer" shall mean a person who is an employee or independent
contractor of an adult business or any other person who, with or without any
compensation or other form of consideration, provides adult live entertainment for
patrons of an adult business.
(1 5) "Sexually Oriented Merchandise" shall mean sexually oriented
implements, paraphernalia, or novelty items, such as, but not limited to: dildos, auto
sucks, sexually oriented vibrators, benwa balls, inflatable orifices, anatomical balloons
with orifices, simulated and battery operated vaginas, and similar sexually oriented
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devices which are designed or marketed primarily for the stimulation of human genital
organs or sado-masochistic activity or distinguished or characterized by their emphasis
on matter depicting, describing or relating to "specified sexual activities" or "specified
anatomical areas."
(1 6) 'Specified Anatomical Areas" shall mean and include any of the following:
(A) Less than completely and opaquely covered, and/or simulated to
(i) genitals, pubic region;
(ii) buttocks, anus; or
(iii)
be reasonably anatomically correct, even if completely and opaquely covered human:
female breasts below a point immediately above the top of
the areola; or
(B) Human male genitals in a discernibly turgid state, even if
completely or opaquely covered.
'Specified Sexual Activities" shall mean and include any of the following,
irrespective of whether performed directly or indirectly through clothing or other
covering :
(17)
(A)
(B) (C) Use of human or animal ejaculation, sodomy, oral copulation,
coitus or masturbation; and/or
(D) Masochism, erotic or sexually oriented torture, beating, or the
infliction of pain, or bondage and/or restraints; and/or
(E) Human excretion, urination, menstruation, vaginal or anal irrigation;
and/or
(F) Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast.
Human genitals in a state of sexual stimulation or arousal; and/or
Acts of human masturbation, sexual stimulation or arousal; and/or
8.60.030 Operating Standards.
A. Hours of Operation.
It shall be unlawful for any owner, operator, manager, employee or independent
contractor of an adult business to allow such adult business to remain open for
business, or to license any employee, independent contractor or performer to engage in
a performance, solicit a performance, make a sale, solicit a sale, provide a service, or
solicit a service, between the hours of 12:OO a.m. and 1O:OO a.m. of any day excepting
herefrom an "adult hotel/motel."
B. Exterior Lighting Requirements.
All exterior areas, including parking lots, of the adult business shall be
illuminated at a minimum of 1.50 foot-candle, maintained and evenly distributed at
ground level with appropriate devices to screen, deflect or diffuse the lighting in such
manner as to prevent glare or reflected light from creating adverse impacts on adjoining
and nearby public and private properties. Inoperable and/or broken lights shall be
replaced within 24 hours.
C. Interior Lightinn Requirements.
All interior areas of the adult business excepting therefrom adult hotels/motels
shall be illuminated at a minimum of 1 .OO foot-candle, maintained and evenly distributed
at floor level. Inoperable and/or broken lights shall be replaced within 24 hours,
excepting herefrom an "adult hotel/motel."
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D. Regulation of Adult Booth/lndividual Viewinq Area.
1. No adult booth/individual viewing area shall be occupied by more
than one individual at a time.
2. Each adult booth/individual viewing area within the adult business
shall be visible from a continuous and accessible main aisle in a public portion of the
establishment, and shall not be obscured by any door, curtain, wall, two-way mirror or
other device which would prohibit a person from seeing the entire interior of the adult
booth/individual viewing area from the main aisle. A manager shall be stationed in the
main aisle at all times. Further, no one shall maintain any adult booth/individual viewing
area in any configuration unless the entire interior wherein the picture or entertainment
that is viewed is visible from one main aisle. The entire body of any patron in any adult
booth/individual viewing area must be visible from the main aisle without the assistance
of mirrors or any other device.
3. No doors are permitted on an adult booth/individual viewing area.
No partially or fully enclosed adult booth/individual viewing areas or partially or fully
concealed adult booth/individual viewing areas shall be maintained.
No holes or other openings shall be permitted between adult
booths/individual viewing areas. Any such hole or opening shall be repaired within 24
hours using "pop" rivets to secure metal plates over the hole or opening to prevent
patrons from removing the metal plates.
No beds, couches or chairs with a sitting area greater than 24" wide
shall be permitted in an adult booth/individual viewing area.
E. On-Site Manager: Security Measures.
All adult businesses shall have a responsible person who shall be at least 18
years of age and shall be on the premises to act as manager at all times during which
the business is open. No performer may serve as the manager. The individual(s)
designated as the on-site manager shall provide hidher name to the Chief of Police to
receive all complaints and be given by the owner and/or operator the responsibility and
duty to address and immediately resolve all violations taking place on the premises.
All adult businesses shall provide a security system that visually records and
monitors all parking lot areas, or in the alternative, state-licensed, uniformed security
guards to patrol and monitor the parking lot areas during all times during which the
business is open. If the business employs security guards, they shall provide written
confirmation to the Chief of Police prior to their employment that the guards are duly
registered. No performer may serve as a security guard.
F. Interior of Premises.
No exterior door or window on the premises of an adult business shall be
propped or kept open at anytime while the business is open and any exterior windows
shall be covered with opaque coverings at all times.
G. Signs.
All adult businesses shall comply with the following sign requirements, in addition
to those of the Carlsbad Municipal Code. Should a conflict exist between the
requirements of the Carlsbad Municipal Code and this subsection, the more restrictive
shall prevail.
4.
5.
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1. If an adult business does not serve alcohol, it shall post a notice
inside the establishment, within ten (IO) feet of every entrance used by customers for
access to the establishment, stating that persons below the age of eighteen (18) years
of age are prohibited from entering onto the premises or within the confines of the adult
business. This notice shall be posted on a wall in a place of prominence. The
dimensions of the notice shall be no less than six (6) inches by six (6) inches, with a
minimum typeface of 25 points. If the adult business serves alcohol, it shall comply
with all notice and posting requirements of the Alcoholic Beverage Control Department.
No adult-oriented material shall be displayed in window areas or
any area where it would be visible from any location other than within the confines of
the adult business.
2.
H.
If the adult business provides restrooms for patron use, it shall provide separate
Regulation of Public Restroom Facilities.
restroom facilities for male and female patrons. The restrooms shall be free from adult
oriented material. Only one (1) person shall be allowed in each restroom at any time,
unless otherwise required by law, in which case the adult business shall employ a
restroom attendant of the same sex as the restroom users who shall be present in the
public portion of the restroom during operating hours. The attendant shall insure that
no person of the opposite sex is permitted into the restroom, and that not more than
one (1) person is permitted to enter a restroom stall, unless otherwise required by law,
and that the restroom facilities are used only for their intended sanitary purposes.
Access to restrooms for patron use shall not require passage through an area used as
a dressing area by performers. - I. Trash .
All interior trash cans shall be emptied into a single locked trash bin lined with a
plastic bag or with individually bagged trash at least once a day. At least four (4) times
a day, the front and rear exteriors of any adult business, along with the parking lot, shall
be inspected for trash and debris and any trash and debris found shall be immediately
removed and placed into a single locked trash bin lined with a plastic bag.
J. Adult Business Offering Adult Live Entertainment - Additional Operatinq
Res u irements.
The following additional requirements shall apply to adult businesses providing
adult live entertainment:
No person shall perform adult live entertainment for patrons of an
adult business except upon a permanently fixed stage at least I8 inches above the
level of the floor, and surrounded with a three foot (3') high barrier or by a fixed rail at
least thirty inches (30") in height. No patron shall be permitted on the stage while the
stage is occupied by a performer(s) and/or adult cabaret dancer(s). This provision shall
not apply to an individual viewing area where the performer is completely separated
from the area in which the performer is viewed by an individual by a permanent, floor to
ceiling, solid barrier.
No performer or adult cabaret dancer shall be within six (6) feet of
a patron, measured horizontally, while the performer or adult cabaret dancer is
performing adult live entertainment. While onstage, no performer or adult cabaret
dancer shall have physical contact with any patron, and no patron shall have physical
contact with any performer or adult cabaret dancer.
I.
2.
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3. As to off stage performances, no performer or adult cabaret dancer
shall perform “adult live entertainment” off stage. As to an adult cabaret dancer
performing off stage, a distance of at least six feet (6’) shall be maintained between the
adult cabaret dancer and the patron(s) at all times. During off stage performances, no
adult cabaret dancer shall have physical contact with any patron, and no patron shall
have physical contact with any adult cabaret dancer.
In addition, while on the premises, no performer or adult cabaret
dancer shall have physical contact with a patron and no patron shall have physical
contact with a performer or adult cabaret dancer, which physical contact involves the
touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the buttocks,
perineum, anal region, or female breast with any part or area of any other person’s
body either before or after any adult live entertainment or off stage performances by
such performer or adult cabaret dancer. Patrons shall be advised of the no touching
requirements by signs and, if necessary, by employees, independent contractors,
performers, or adult cabaret dancers of the establishment. This prohibition does not
extend to incidental touching.
5. Patrons shall be advised of the separation and no touching
requirements by signs conspicuously displayed and placed on the barrier between
patrons and performers and utilizing red or black printing of letters not less than one (1)
inch in size. And, if necessary, patrons shall also be advised of the separation and no
touching requirements by employees or independent contractors of the establishment.
All employees and independent contractors of the adult facility,
except therefrom performers while performing on the fixed stage, while on or about the
premises or tenant space, shall wear at a minimum an opaque covering which covers
their specified anatomical areas.
Patrons shall not throw money to performers, place monies in the
performers’ costumes or othetwise place or throw monies on the stage. If patrons wish
to pay or tip performers, payment or tips may be placed in containers. Patrons shall be
advised of this requirement by signs conspicuously displayed and placed on the barrier
between patrons and performers and utilizing red or black printing of letters not less
than one (1) inch in size. If necessary, patrons shall also be advised of the tipping and
gratuity requirements by employees or independent contractors of the adult business.
The adult business shall provide dressing rooms for performers,
that are separated by gender and exclusively dedicated to the performers’ use and
which the performers shall use. Same gender performers may share a dressing room.
Patrons shall not be permitted in dressing rooms.
9. The adult business shall provide an entrance/exit to the
establishment for performers that is separate from the entrance/exit used by patrons,
which the performers shall use at all times.
The adult business shall provide access for performers between
the stage and the dressing rooms that is completely separated from the patrons. If
such separate access is not physically feasible, the adult business shall provide a
minimum three (3) foot wide walk aisle for performers between the dressing room area
and the stage, with a railing, fence or other barrier separating the patrons and the
performers capable of (and which actually results in) preventing any physical contact
between patrons and performers and the patrons must also be three (3) feet away from
the walk aisle. Nothing in this section is intended to exempt the adult business from
4.
6.
7.
8.
10.
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compliance with the provisions of Title 24 of the California Code of Regulations
pertaining to handicapped accessibility.
K. Adult Motion Picture Theater - Additional ODeratinq Requirements.
The following additional requirements shall apply to adult motion picture theaters:
1. If the theater contains a hall or auditorium area, the area shall
comply with each of the following provisions:
(i) Have individual, separate seats, not couches, benches, or the like, to accommodate the maximum number of persons who may occupy the hall or
auditorium area;
Have a continuous main aisle alongside the seating areas in
order that each person seated in the hall or auditorium area shall be visible from the
aisle at all times; and
Have a sign posted in a conspicuous place at or near each
entrance to the hall or auditorium area which lists the maximum number of persons who
may occupy the hall or auditorium area, which number shall not exceed the number of
seats within the hall or auditorium area.
If an adult motion picture theater is designed to permit outdoor
viewing by patrons seated in automobiles, it shall have the motion picture screen so
situated, or the perimeter of the establishment so fenced, that the material to be seen
by those patrons may not be seen from any public right-of-way, child day care facility,
public park, school, or religious institution or any residentially zoned property occupied
with a residence.
(ii)
(iii)
2.
8.60.040 Adult Business License.
All adult businesses are subject to the adult business license requirements of
this Chapter as well as all other applicable ordinances of the City and laws of the State
of California.
It shall be unlawful for any person to establish, operate, engage in, conduct, or
carry on any adult business within the City of Carlsbad unless the person first obtains,
and continues to maintain in full force and effect, an adult business license as herein
required. Any "establishment of an adult business" as defined in Section 8.60.020(1 I),
above shall require a new application for an adult business license. The adult business
license shall be subject to the development and operational standards of this Chapter
and the regulations of the zoning district in which the facility is located.
If the license applicant is a corporation or L.L.C., the applicant shall provide its
complete name, the date of its organization, evidence that the entity is in good standing
under the laws of the State of California, the names and capacities of all officers,
directors and individuals with managerial control over the facility, the name of the
registered agent, and the address of the registered officer or member for service of
process.
8.60.050 Felony Convictions.
A signed and verified statement made by the applicant that the license applicant,
if an individual, or by all of the partners, officers, directors, if an L.L.C., partnership or
corporation, that none of them has pled guilty or nolo contendere or been convicted of
an offense classified by this or any other state as a sex or sex-related offense and (a)
more than two years have elapsed since the date of conviction or the date of release
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from confinement of conviction to the date of application, whichever is the later date, if
the conviction is a misdemeanor; or (b) more than five years have elapsed since the
date of conviction or the date of release from confinement of conviction to the date of
application, whichever is the later date, if the conviction is a felony; or (c) more than five
years have elapsed since the date of the last conviction or the date of release from
confinement for the conviction to the date of application, whichever is the later date, if
the convictions are two or more misdemeanors or combination of misdemeanor
offenses occurring within any 24-month period.
8.60.060 Adult Business License Applications.
A. The completeness of an application for an adult license shall be
determined by the Chief of Police within five (5) working days of its submittal. If the
Chief of Police determines that the license application is incomplete, the Chief of Police
shall immediately notify in writing the license applicant of such fact and the reasons
therefore, including any additional information necessary to render the application
complete. Such writing shall be deposited in the U.S. mail, postage prepaid,
immediately upon determination that the application is incomplete. Within five (5)
working days following the receipt of an amended application or supplemental
information, the Chief of Police shall again determine whether the application is
complete in accordance with the provisions set forth above. Evaluation and notification
shall occur as provided herein until such time as the application is found to be
complete.
B. Upon receipt of a completed application and payment of the application
and license fees, the Chief of Police shall immediately write or stamp the application
"Received" and, in conjunction with City staff, shall promptly investigate the information
contained in the application to determine whether an adult business license shall be
granted. Investigation shall not be grounds for the City to unilaterally delay in reviewing
a completed application, nor is it grounds to extend the time period to conduct a hearing
pursuant to this Section.
Within thirty (30) days of receipt of the completed application, the Chief of
Police shall issue or deny the license.
In reaching a decision, the Chief of Police shall not be bound by the
formal rules of evidence in the California Evidence Code.
The failure of the Chief of Police to render any decision within the time
frames established in any part of this Section shall be deemed to constitute an
approval, subject to appeal to the City Manager pursuant to Section 8.60.080. The
Chief of Police's decision shall be hand delivered or mailed to the applicant at the
address provided in the application, and shall be provided in accordance with the
requirements of this Code.
Notwithstanding any provisions in this Section regarding the occurrence of
any action within a specified period of time, the applicant may request additional time
beyond that provided for in this Section or may request a continuance regarding any
decision or consideration by the City of the pending application. Extensions of time
sought by applicants shall not be considered delay on the part of the City or constitute
failure by the City to provide for prompt decisions on applications.
The Chief of Police shall grant or deny the application in accordance with
the provisions of this Section, and so notify the applicant as follows:
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C.
D.
E.
F.
G.
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1.
2.
3.
The Chief of Police shall write or stamp "Granted" or "Denied" on
the application and date and sign such notation.
If the application is denied, the Chief of Police shall attach to the
application a statement of the reasons for the denial.
If the application is granted, the Chief of Police shall attach to the
application an adult business license.
H. The Chief of Police shall grant the application and issue the adult
business license upon findings that the proposed business meets, or will meet, all of the
development and operational standards and requirements of this Chapter, unless the
application is denied based upon one or more of the criteria set forth below.
If the Chief of Police grants the application, the applicant may begin
operating the adult business for which the license was sought, subject to strict
compliance with the development and operational standards and requirements of this
Chapter. The license holder shall post the license conspicuously in the premises of the
adult business.
J. The Chief of Police shall deny the application if the applicant fails to
establish any of the following:
1. The adult business complies with the City's zoning requirements as
to its underlying zoning designation.
2. The adult business complies with the development, operational or
performance standards found in this Chapter.
3. The license applicant is at least eighteen (18) years of age.
4. The required application fees have been paid.
The application complies with Section 8.60.040 (status of an L.L.C.).
An applicant, including, if an L.L.C., partnership or corporation, any of the
partners, officers, or directors, cannot re-apply for an adult business license for a
particular location within one (1) year from the date of prior denial.
Any affected person may appeal the decision of the Chief of Police in
writing in accordance with the provisions of Section 8.60.080.
I.
5.
K.
L.
8.60.070 Transfer of Adult Business License.
A. A license holder shall not operate an adult business under the authority of
an adult business license at any place other than the address of the adult business
stated in the application for the license.
In the event of a transfer of ownership of the adult business, the new
owner shall be fully informed of the requirements of this Chapter, including the
operational and development standards herein.
In the event of a transfer of the adult business or the adult business
license, the transferee must provide the Chief of Police with the following information
within seven (7) days of the transfer:
If the transferee is an individual, the individual shall state his or her
legal name, including any aliases, and address, and shall submit satisfactory written
proof that he or she is at least eighteen (18) years of age.
If the transferee is a partnership, the partners shall state the
partnership's complete name, address, the names of all partners, and whether the
partnership is general or limited; and shall attach a copy of the partnership agreement,
if any.
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B.
C.
1.
2.
D. If the transferee is a corporation or L.L.C., the entity shall provide its
complete name, the date of its incorporation or organization, evidence that it is in good
standing under the laws of the State of California, the names and capacities of all
officers and directors, managers or members asserting supervisory or managerial
control over the facility, the name of the registered agent, and the address of the
registered office for service of process.
8.60.080 Appeal Procedures.
A. The decision of the Chief of Police shall be appealable to the City
Manager by the filing of a written appeal with the City Clerk within fifteen (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 or a Designated Hearing Officer
designated by him/her which can include a retired judge shall, at a duly noticed meeting
within thirty (30) days from the date the written appeal was filed, independently review
the entire record, including the transcript of the hearing and any oral or written
arguments which may be offered to the City Manager or Designated Hearing Officer by
the appellant and respondent. No additional testimony or other evidence shall be
received or considered by the City Manager or Designated Hearing Officer. At the
conclusion of the review, 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 action of the City Manager or Designated Hearing Officer shall be
final and conclusive, shall be rendered in writing within four (4) working days, and such
written decision shall be immediately mailed or delivered to the appellant(s) and there
shall be no additional right of appeal.
Notwithstanding any provisions in this Section regarding the occurrence of
any action within a specified period of time, the applicant may request additional time
beyond that provided for in this division or may request a continuance regarding any
decision or consideration by the City of the pending appeal. Extensions of time sought
by applicants shall not be considered delay on the part of the City or constitute failure
by the City to provide for prompt decisions on applications.
Failure of the City Manager or Designated Hearing Officer to render a
decision to grant or deny an appeal of a license denial within the time frames
established by this section shall be deemed to constitute an approval of the adult
business license.
D. The time for a court challenge to a decision of the City Manager or
Designated Hearing Officer is governed by California Code of Civil Procedure § 1094.8.
E. Notice of the City Manager or Designated Hearing Officer's decision and
its findings shall include citation to California Code of Civil Procedure § 1094.8.
F. Any applicant or license holder whose license has been denied pursuant
to this Section shall be afforded prompt judicial review of that decision as provided by
California Code of Civil Procedure § 1094.8.
G. The City Manager or Designated Hearing Officer's decision shall be final.
Section 1.20.600 of the Municipal Code shall not apply to any decisions made under
Section 8.60.080.
B.
C.
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8.60.090 Suspension or Revocation of Adult Business License.
A. On determining that grounds for license suspension or revocation exist,
the Chief of Police or his designee shall furnish written notice of the proposed
suspension or revocation to the license holder. 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 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 license holder, or shall be delivered to the license holder
personally, at least ten (IO) days prior to the hearing date. Hearings pursuant to this
Section shall be conducted by the City Manager or a Designated Hearing Officer
designated by him/her which can include a retired judge. Hearings pursuant to this
Section shall be conducted in accordance with procedures established by the City
Manager or Designated Hearing Officer but, at a minimum shall include the following:
1. All parties involved shall have the right to offer testimonial,
documentary, and tangible evidence bearing upon the issues and may be represented
by counsel.
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 license holder.
Extensions of time or continuances sought by a license holder shall not be considered
delay on the part of the City or constitute failure by the City to provide for prompt
decisions on license suspensions or revocations.
The City Manager or Designated Hearing Officer’s decision shall be
final. Section 1.20.600 of the Municipal Code shall not apply to any decisions made
under Section 8.60.090.
A license may be suspended or revoked based on the following causes
arising from the acts or omissions of the license holder, or an employee, independent
contractor, partner, director, or manager of the license holder:
The building, structure, equipment, or location used by the adult
business fails to comply with all provisions of these regulations and this Section relating
to adult businesses, including the adult business operational standards contained in
Section 8.60.030 and the zoning requirements of Chapter 21.43, and all other
applicable building, fire, electrical, plumbing, health, and zoning requirements of the
Carlsbad Municipal Code.
2. The license holder has failed to obtain or maintain all required City
licenses.
3. The license holder has made any false, misleading, or fraudulent
statement of material fact in the application for an adult business license.
4. The license is being used to conduct an activity different from that
for which it was issued.
5. That an individual employed by, or performing in, the adult
business (whether classified as an employee or independent contractor) has been
convicted of two or more sex-related offenses that occurred in or on the licensed
premises within a 12 month period and was employed by, or performing in, the adult
business at the time the offenses were committed.
2.
3.
4.
B.
1.
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6. That the use for which the approval was granted has ceased to
exist or has been suspended for six (6) months or more.
7. That the transfereehew owner of an adult business or adult
business license failed to comply with the requirements of this Chapter.
8. The license holder, partner, director, or manager has knowingly
allowed or permitted, and has failed to make a reasonable effort to prevent the
occurrence of any of the following on the premises of the adult business; or a licensee
has been convicted of violating any of the following State laws on the premises of the
adult 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 31 5, 316, 318 of
the California Penal Code.
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 31 1 through 313.4.
(vi) Any act constituting a felony involving the sale, use,
possession, or possession for sale of any controlled substance specified in Sections
11 054, 1 1055, 11 056, 1 1057, or I1 058 of the California Health & Safety Code.
An act or omission in violation of any of the requirements of
this Chapter if such act or omission is with the knowledge, authorization, or approval of
the license holder or is as a result of the license holder’s negligent supervision of the
employees or independent contractors of the adult facility. This includes the allowance
of activities that are or become a public nuisance which includes the disruptive conduct
of business patrons whether on or immediately off the premises where such patrons
disturb the peace, obstruct traffic, damage property, engage in criminal conduct, violate
the law and otherwise impair the free enjoyment of life and property.
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 for suspension or revocation, the City Manager or Designated Hearing Officer
shall impose one of the following:
Suspension of the license for a specified period not to exceed six
(6) months; or
The City Manager or Designated Hearing Officer shall render a written decision
that shall be hand delivered or overnight mailed to the license holder within five (5) days
of the public hearing.
In the event a license is revoked pursuant to this Section, another adult
business license to operate an adult business shall not be granted to the licensee within
twelve (12) months after the date of such revocation.
(v)
(vii)
C.
I.
2. Revocation of the license.
D.
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E.
F.
G.
The time for a court challenge to a decision of the City Manager or
Designated Hearing Officer is governed by California Code of Civil Procedure § 1094.8.
Notice of the City Manager or Designated Hearing Officer's decision and
its findings shall include citation to California Code of Civil Procedure § 1094.8.
Any applicant or license holder whose license has been suspended or
revoked pursuant to this Section shall be afforded prompt judicial review of that
decision as provided by California Code of Civil Procedure § 1094.8.
8.60.100 Employment of and Services Rendered to Persons Under the Age of
A. Employees/lndependent Contractors.
Employees and independent contractors of an adult business must be at least
eighteen (18) years of age. It shall be unlawful for any owner, operator, manager,
partner, director, officer, shareholder with a ten (IO) percent or greater interest,
employees, or other person in charge of any adult business to employ, contract with, or
otherwise retain any services in connection with the adult business with or from any
person who is not at least eighteen (18) years of age. If liquor is served at the adult
business, employees and independent contractors of the adult business must be at
least twenty-one (21) years of age. If liquor is served at the adult business, it shall be
unlawful for any owner, operator, manager, partner, director, officer, shareholder with a
ten (IO) percent or greater interest, employee, or other person in charge of any adult
business to employ, contract with, or otherwise retain any services in connection with
the adult business with or from any person who is not twenty-one (21) years of age.
And said persons shall exercise reasonable care in ascertaining the true age of persons
seeking to contract with, be employed by, or otherwise service the adult business.
Eighteen (18) Years Prohibited: Twenty-one (21) if Liquor is Served.
B. Patrons.
Patrons of an adult business must be at least eighteen (18) years of age. It shall
be unlawful for any owner, operator, manager, partner, director, officer, shareholder
with a ten (1 0) percent or greater interest, employee, independent contractor, or other
person in charge of any adult business to permit to enter or remain within the adult
business any person who is not at least eighteen (18) years of age. If liquor is served
at the adult business, patrons must be at least twenty-one (21) years of age. If liquor is
served at the adult business, it shall be unlawful for any owner, operator, manager,
partner, director, officer, shareholder with a ten (IO) percent or greater interest,
employee, independent contractor, or other person in charge of any adult business to
permit to enter or remain within the adult business any person who is not at least
twenty-one;(21) years of age. And said persons shall exercise reasonable care in
ascertaining the true age of persons entering the adult business.
C. X-rated movies.
The selling, renting and/or displaying of x-rated movies, videotapes, digital video
disks (DVDs), compact disks (CDs) and laser disks shall be restricted to persons over
eighteen (18) years of age. If an establishment that is not otherwise prohibited from
providing access to the establishment to persons under eighteen (18) years of age
sells, rents, or displays movies, videos, DVDs, or laser disks that have been rated "X" or
rated "NC-17" by the motion picture rating industry ("MPAA"), or which have not been
submitted to the MPAA for a rating, and which consist of images that are distinguished
or characterized by an emphasis on depicting or describing specified sexual activities or
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specified anatomical areas, said movies, videos, DVDs, CDs, and laser disks shall be
located in a specific section of the establishment where these items are not visible to
persons under the age of eighteen (18) and from which persons under the age of
eighteen (18) shall be prohibited.
8.60.1 10 Regulations Non-Exclusive.
The provisions of this Chapter regulating adult businesses are not intended to be
exclusive, and compliance therewith shall not excuse non-compliance with any other
provisions of the Municipal Code and/or any other regulations pertaining to the
operation of businesses as adopted by the City Council of the City of Carlsbad.
8.60.120 Violations.
A. Any owner, operator, manager, employee or independent contractor of an
adult business violating or permitting, counseling, or assisting the violation of any of
these provisions regulating adult businesses shall be subject to any and all civil
remedies, including license revocation. All remedies provided herein shall be
cumulative and not exclusive. Any violation of these provisions shall constitute a
separate violation for each and every day during which such violation is committed or
continued.
In addition to the remedies set forth in Section 8.60.120(A), any adult
business that is operating in violation of these provisions regulating adult businesses is
hereby declared to constitute a public nuisance and, as such, may be abated or
enjoined from further operation.
The restrictions imposed pursuant to this Section constitute a licensing
process, and do not constitute a criminal offense. Notwithstanding any other provision
of the Carlsbad Municipal Code, the City does not impose a criminal penalty for
violations of the provisions of this ordinance related to sexual conduct or activities.
6.
C.
8.60.130 Public Nuisance.
In addition to the penalties set forth in this Chapter, any adult business that is
operating in violation of these provisions regulating adult businesses is hereby declared
to constitute a public nuisance and, as such, may be abated or enjoined from further
operation.
8.60.140 Severabilitv.
If any section, subsection, paragraph, sentence, clause, or phrase of this
Chapter and the Ordinance to which it is a part, or any part thereof is held for any
reason to be unconstitutional, invalid, or ineffective by any court of competent
jurisdiction, the remaining sections, subsections, paragraphs, sentences, clauses, and
phrases shall not be affected thereby. The City Council hereby declares that it would
have adopted this Chapter and the Ordinance to which it is a part regardless of the fact
that one or more sections, subsections, paragraphs, sentences, clauses, or phrases
may be determined to be unconstitutional, invalid, or ineffective.”
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SECTION 4. That Title 8 of the Carlsbad Municipal Code is amended by
the addition of Chapter 8.70 entitled "Adult Business Performer License" to read as
follows:
"CHAPTER 8.70
ADULT BUSINESS PERFORMER LICENSE
5 8.70.010
§ 8.70.020 5 8.70.030
§ 8.70.040
5 8.70.050
§ 8.70.060
§ 8.70.070
§ 8.70.080
§ 8.70.090
§ 8.70.100
Purpose
Adult Business Performer License
Investigation and Action on Adult Business Performer
License
Revocation/Suspension/Denial of Adult Business Performer
License
Display of Identification Cards
Adult Business Performer License Non-Transferable
Time Limit for Filing Application for License
Violations
Regulations Non-Exclusive
Severability
8.70.010 Purpose.
It is the purpose and intent of this Chapter to provide for the licensing of adult
business performers in order to promote the health, safety, and general welfare of the
City. The goals of the performer licensing provisions are (1) to protect minors by
requiring that all performers be over the age of eighteen (18) years; (2) to assure the
correct identification of persons performing 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 licensing of performers with
certain sex-related convictions in a set time period. It is neither the intent nor the effect
of these regulations to invade the privacy of performers 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 the Chapter 8.60 of the Carlsbad Municipal Code,
shall govern for purposes of these regulations.
8.70.020 Adult Business Performer License.
A. No performer shall be employed, hired, engaged, or otherwise retained in
an adult business to participate in or give any live performance displaying "specified
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anatomical areas" or "specified sexual activities" without first having a valid adult
business performer license issued by the City.
The Chief of Police or his designee shall grant, deny, and renew adult
business performer licenses in accordance with these regulations.
License applicants 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:
The license applicant's legal name and any other names (including
"stage names" and aliases) used by the applicant.
B.
C.
1.
2. Principal place of residence.
3. Age, date and place of birth.
4. Height, weight, hair and eye color and tattoo descriptions and
5. Each present and/or proposed business address(es) and telephone
6. Driver's license or identification number and state of issuance.
7. Social security number.
8. Satisfactory written proof that the license applicant is a least
eighteen (18) years of age.
9. The license applicant's fingerprints on a form provided by the San
Diego County Sheriffs Department and two color two by two inch photographs clearly
showing the applicant's face. Any fees for the photographs and fingerprints shall be
paid by the applicant. Fingerprints and photograph shall be taken within six (6) months
of the date of application.
Whether the license applicant, has pled guilty or 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 of 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 of
conviction to the date of conviction, 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.
11. If the application is made for the purpose of renewing a license, the
license applicant shall attach a copy of the license to be renewed.
The information provided above in Section (c) which is personal, private,
confidential or the disclosure of which could expose the applicant 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 residence address, telephone number, date of birth
and age, driver's license and social security number. The City Council in adopting the
application and licensing and/or permit system set forth herein has determined in
accordance with Government Code 5 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 or security
interest are protected. The City Clerk shall cause the same to be redacted from any
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locations .
number(s) of the establishments at which the applicant intends to work.
IO.
D.
29
copy of a completed application form made available to any member of the public, the
above mentioned information.
The completed application shall be accompanied by a non-refundable
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.
F. The completeness of an application shall be determined within two (2)
working days by the Chief of Police. The Chief of Police must be available during
normal working hours Monday through Friday to accept adult business performer
applications. 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 performer application and
payment of the license fee specified in Section E above, the Chief of Police shall
immediately issue a temporary license which shall expire of its own accord ten (IO)
business days from the date of issuance and shall only be extended as provided in
Section 8.70.030. G. This temporary adult business performer license shall
authorize a performer to commence performance at an adult business establishment
that possesses a valid adult business license authorized to provide live entertainment.
The fact that a license applicant possesses other types of state or City
permits or licenses does not exempt the license applicant from the requirement of
obtaining an adult business performer license.
E.
H.
8.70.030 Investigation and Action on Application for Adult Business Performer
License.
A. Upon submission of a completed application, payment of license fees,
and issuance of a temporary adult business performer license pursuant to Section
8.70.01 0, the Chief of Police 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 license
applicant should be issued an adult business performer license.
Investigation shall not be grounds for the City to unilaterally delay in
reviewing a completed application. The Chief of Police's decision to grant or deny the
adult business performer license shall be made within ten (1 0) business days from the
date the temporary license was issued. In the event the Chief of Police is unable to
complete the investigation within ten (IO) business days, he shall promptly notify the
license applicant and extend the temporary license for up to ten (IO) additional
business days. In no case shall the investigation exceed twenty (20) days, nor shall the
decision to grant or deny the license application be made after the expiration of the
temporary license.
The Chief of Police shall render a written decision to grant or deny the
license within the time period set forth in Section 8.70.030 B. Said decision shall be
mailed first class postage prepaid or hand delivered to the applicant, within the
foregoing ten (IO) day period (or twenty (20) day period if extended pursuant to Section
8.70.030 B.), at the address provided by the applicant in the application.
B.
C.
D. The Chief of Police shall notify the applicant as follows:
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1.
2.
The Chief of Police shall write or stamp "Granted" or "Denied" on
the application and date and sign such notation.
If the application 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 license applicant may appeal the denial to the City Manager. The City Manager
or a Designated Hearing Officer shall conduct a hearing as described in Section
8.70.040.
If the application is granted, the Chief of Police shall attach to the
application an adult business performer license.
The application, as acted upon, and the license, if any, shall be
placed in the United States mail, first class postage prepaid, or hand delivered,
addressed to the license applicant at the residence address stated in the application in
accordance with the time frames established herein.
E. The Chief of Police shall grant the application and issue the license
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 based on any of the
following grounds:
1. The license applicant has made false, misleading, or fraudulent
statement of material fact in the application for an adult business performer license.
2. The license applicant is under eighteen (1 8) years of age.
3. The adult business performer license is to be used for performing
in a business prohibited by laws of the State or City or a business that does not have a
valid adult business license.
4. The license applicant, has pled guilty, 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 of 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 of 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.
Failure of the Chief of Police to render a decision on the license within the
time frames established by this section shall be deemed to constitute an approval.
Each adult business performer license, other than the temporary license
described in Section 8.70.020(F), shall expire one (1) 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 license fee and a copy of the license to be renewed. If said
application conforms to the previously approved application and there has been no
change with respect to the license holder being convicted of any crime classified by this
or any other state as a sex-related offense, the Finance Officer or designee shall renew
the license for one (I) 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 thirty
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(30) days before the expiration date of the license. Applications for renewal shall be
acted upon as provided herein for action upon applications for license. The Chief of
Police's denial of a renewal application is subject to the hearing provisions of Section
8.70.040.
8.70.040 Revocation/Suspension/Denial of Adult Business Performer License.
A. On determining that grounds for license revocation or suspension exist,
the Chief of Police or his designee shall furnish written notice of the proposed action to
the applicantllicense holder. 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 Carlsbad 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 applicantllicense holder,
or shall be delivered to the license holder personally, at least ten (IO) days prior to the
hearing date.
On determining that grounds for denial of a license exist, the Chief of
Police shall furnish written notice of the proposed action to the applicantllicense holder.
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 fifteen (15) days following the day
of mailing of the Chief of Police Is 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
thirty (30) days from the date the appeal was filed and the ground or grounds upon
which the hearing is based, the pertinent Carlsbad 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 applicantllicense holder, or shall
be delivered to the license holder personally, at least ten (IO) days prior to the hearing
date.
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 a licensee/appellant shall not be considered delay on
the part of the City or constitute failure by the City to provide for prompt decisions on
license suspensions or revocations.
A license may be revoked, based on any of the following causes arising
from the acts or omissions of the license holder:
I. The licensee has made any false, misleading, or fraudulent
statement of material fact in the application for a performer license.
2. The licensee has pled guilty, 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 of 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 of conviction to the date of
B.
C.
D.
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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 8.60 or
the requirements of this Chapter.
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 for revocation or suspension, the City Manager or Designated Hearing Officer
shall revoke or suspend the license. After holding the hearing in accordance with the
provisions of this Section on the denial of a license, 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 applicantllicense holder within four (4) 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 an approval or reinstatement of the license.
In the event a license is revoked pursuant to this Section, another adult
business performer license shall not be granted to the licensee within twelve (12)
months after the date of such revocation.
The decision of the City Manager or Designated Hearing Officer shall be
final. Section 1.20.600 of the Municipal Code shall not apply to any decisions made
under Section 8.70.040.
H. The time for a court challenge to a decision of the City Manager or
Designated Hearing Officer is governed by California Code of Civil Procedure 5 1094.8.
I. Notice of the City Manager’s or Designated Hearing Officer’s decision and
his findings shall include citation to California Code of Civil Procedure § 1094.8.
J. Any applicant or license holder whose license has been denied, suspended,
or revoked, pursuant to this Section shall be afforded prompt judicial review of that
decision as provided by California Code of Civil Procedure § 1094.8.
E.
F.
G.
8.70.050 Disdav of License Identification Cards.
The Chief of Police shall provide each adult business performer required to have
a license pursuant to this Chapter with an identification card containing the name,
address, photograph, and license number of such performer. Every performer shall
have such card available for inspection at all times during which he or she is on the
premises of the adult business at which he or she performs.
8.70.060 Adult Business Performer License Non-Transferable.
No adult business performer license may be sold, transferred, or assigned by
any licensee or by operation of law, to any other person, group, partnership,
corporation, or any other entity. Any such sale, transfer, or assignment, or attempted
sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the
adult business performer license, and the license thereafter shall be null and void.
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8.70.070 Time Limit For Filing Application For License.
All persons required by this Chapter to obtain an adult business performer
license must apply for and obtain such adult business performer license within fourteen
(14) days of the effective date of this Section. Failure to do so and continued
performance that displays "specified anatomical areas" or "specified sexual activities" in
an adult business after such time without a permit or license shall constitute a violation
of this Section.
8.70.080 Violations.
A. Any licensee violating or causing the violation of any of these provisions
regulating adult business performer licenses shall be subject to license
revocation/suspension pursuant to Section 8.70.040 above, a fine of not more than one
thousand dollars ($1,000.00) pursuant to Government Code §§ 36900 and 36901, and
any and all other civil remedies. All remedies provided herein shall be cumulative and
not exclusive. Any violation of these provisions shall constitute a separate violation for
each and every day during which such violation is committed or continued.
B. In addition to the remedies set forth in Section 8.70.080(a), any violation
of any of these provisions regulating adult business performer licenses is hereby
declared to constitute a public nuisance and may be abated or enjoined.
The restrictions imposed pursuant to this Section are part of a regulatory
licensing process, and do not constitute a criminal offense. Notwithstanding any other
provision of the Carlsbad Municipal Code, the City does not impose a criminal penalty
for violations of the provisions of this ordinance related to sexual conduct or activities.
C.
8.70.090 Regulations Non-Exclusive.
The provisions of this Chapter regulating adult business performer licenses are
not intended to be exclusive, and compliance therewith shall not excuse
non-compliance with any other regulations pertaining to the licensing provisions as
adopted by the City Council of the City of Carlsbad.
8.70.100 Severability.
If any section, subsection, paragraph, sentence, clause, or phrase of this
Chapter and the Ordinance to which it is a part, or any part thereof is held for any
reason to be unconstitutional, invalid, or ineffective by any court of competent
jurisdiction, the remaining sections, subsections, paragraphs, sentences, clauses, and
phrases shall not be affected thereby. The City Council hereby declares that it would
have adopted this Chapter and the Ordinance to which it is a part regardless of the fact
that one or more sections, subsections, paragraphs, sentences, clauses, or phrases
may be determined to be unconstitutional, invalid, or ineffective.
SECTION 5. That Section 8.09.011 of the Carlsbad Municipal Code
entitled "Cabaret Dancers" is hereby repealed and replaced as follows:
"8.09.01 1 Cabaret Dance.
"Cabaret dance" means any dance conducted in a commercial
establishment open to the public where alcoholic beverages are regularly sold or
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otherwise distributed, except for any dance which falls within this definition but is also
regulated under Chapter 8.60. Activities which fall within the scope of Chapter 8.60
(performances at adult businesses) are not “cabaret dances” within the meaning of this
Section and are not regulated under Chapter 8.09.”
SECTION 6. That Section 11.28.050 of the Carlsbad Municipal Code is
hereby repealed and replaced with the following:
“1 1.28.050 Exceptions.
This chapter shall not apply to:
(1)
(2)
Persons under the age of ten years;
Persons engaged in a live theatrical performance performed in a
theater, concert hall or other similar establishment which is predominantly devoted to
theatrical performances;
Any act or acts which are expressly authorized or prohibited by the
Penal Code of the state of California. (Ord. 3103 § 1 (part), 1976); and/or
Any act regulated under Chapter 8.60.”
(3)
(4)
SECTION 7. DE MINIMUS IMPACT FINDING FOR FISH AND GAME
FEE EXEMPTION
The City Council further finds that, considering the record as a whole
including the Initial Study prepared for the project, that the Ordinance, as proposed by
the City of Carlsbad involves no potential for adverse effect, either individually or
cumulatively, on wildlife resources, as defined in Section 71 I .2 of the Fish and Game
Code, or the habitat upon which the wildlife depends and directs staff to prepare and
file a Certificate of Fee Exemption. The City Council further finds that based upon
substantial evidence , including the Initial Study, the presumption of adverse effect on
wildlife resources or the habitat upon which the wildlife depends is rebutted.
DECLARATION OF URGENCY: This ordinance is hereby declared to be
an urgency ordinance adopted as an emergency measure to protect the public health,
safety and welfare pursuant to Government Code section 36937(b) and shall take effect
immediately upon its adoption. The facts constituting the urgency are those set forth
above and represent a current and immediate threat to the public health, safety or
general welfare of the citizens of Carlsbad.
Urgency Ordinance No. NS- 7 bo
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EFFECTIVE: This urgency ordinance shall be effective immediately upon
adoption and shall be of no further force and effect once Ordinance No.
becomes effective.
NS-761
SEVERABILITY CLAUSE: If any section, subsection, sentence, clause,
phrase or part of this urgency ordinance is for any reason held to be invalid or
unconstitutional by the final decision of any court of competent jurisdiction, such
decision shall not affect the validity of the remaining parts of this urgency ordinance.
The City Council hereby declares that it would have adopted this ordinance and each
section, subsection, sentence, clause, phrase or part thereof irrespective of the fact that
any one or more of the sections, subsections, sentences, clauses, phrases or parts are
declared invalid or unconstitutional.
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Carlsbad on the 28th day of JUNE , 2005, by the following vote, to wit:
AYES: Council Members Lewis, Hall, Kulchin, Packard, Sigafoose
NOES: None
ABSENT: None
APPROVED AS TO FORM AND LEGALITY n
RONALD R. BALL, City Attorney
6/34O'i7
"ATTEST:
Urgency Ordinance No. NS- 7d0
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