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HomeMy WebLinkAbout2005-07-05; City Council; 18197; Regulation for Adult Businesses and PerformersAB# 18.197 MTG. 07/05/05 DEPT. CLK RECOMMENDED ACTION: DEPT. HD. zie REGULATION OF LICENSING AND OPERATIONAL PROCEDURES FOR ADULT PERFORMERS STANDARDS FOR ADULT BUSINESSES AND LICENSING ClTy ATm. CITY Adopt Ordinance No. NS-761 amending sections 8.09, 11.28 and 21.43 of the Carlsbad Municipal Code and adding Chapters 8.60 and 8.70 to the Carlsbad Municipal Code to regulate the licensing and operational standards for adult businesses and licensing procedures for adult performers. ITEM EXPLANATION: Ordinance No. NS-761 was introduced and first read at the City Council meeting held on June 28, 2005. The second reading allows the City Council to adopt the ordinance, which would then become effective in thirty days. The City Clerk will have the ordinance published within fifteen days, if adopted. FISCAL IMPACT: See Agenda Bill No. 18,187 on file with the City Clerk. EXHIBIT: I. Ordinance No. NS-761. DEPARTMENT CONTACT: Sheila Cobian (760) 434-2927, scobi@ci.carlsbad.ca.us ORDINANCE NO. NS- 761 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA AMENDING CHAPTERS 8.09, 11.28, 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 determination of the City Council that the measure set forth herein to be known as Licensing And Operational Standards For Adult Businesses And Licensing Procedures For Adult Performers of Carlsbad, corrects the Ordinance No. NS- 7 b\ Page 1 of 2- constitutional defects of the pre-existing ordinance by clearly proscribing judicially approved time, place and manner regulations of adult businesses and adult performers while, at the same time, recognizing and preserving the constitutional rights of their owners, operators, performers and patrons, Now, therefore, the City Council of the City of Carlsbad, California does find as follows: 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 Ordinance and such operating standards for adult businesses in order to: (1) 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 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. B. The City Council, in adopting this 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 (I 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); Wittier, 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 Ordinance to regulate the adverse secondary effects of adult businesses and more specifically finds that these studies provide convincing evidence that: Ordinance NO. NS- 76 \ Page 2 of 3 3 1. 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. 2. 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. C. In developing this 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. ZJ 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. 560, 11 1 S.Ct. 2456, 115 L.Ed.2d 504 (1991); FW/PBS, 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.City of La Habra, 395 F.3d 11 14 (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); World Wide Video. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1 153 (9th Cir. 2003); Diamond v. City of Taft, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531 U.S. 1072 (2001); lsbell v. City of San Diego, 258 F.3d I108 (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., Inc. v. City of Las Vegas (“Baby Tam 1’9, 154 F.3d 1097 (9th Cir. 1998); Baby Tam & Co., lnc. v. City of Las Vegas (“Baby Tam ll’y, 199 F.3d 1111 (9th Cir. 2000); Baby Tam & Co., lnc. v. City of Las Vegas (“Baby Tam lll’y, 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 I 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 (1998); City of National City v. Wener, 3 Cal.4th 832 (1993), cerf. 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 ordinance NO. NS- 7 b I Page 3 of 3 I Appeals Board of California ("Vjca~'~, 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 v. Mitey, 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, 10 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); lnternational Eateries v. Broward County, 941 F.2d 1157 (11th Cir. 1991), cert. denied 503 U.S. 920 (1992); and Star Satellite, lnc. v. City ofBiloxi, 779 F.2d I074 (5th Cir. 1986). D. 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: (I) 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. City of 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 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: I. 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. 2. 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. 3. Evidence indicates that performers at adult businesses have been found to engage in acts of prostitution with patrons of the establishment. Ordinance No. NS- 7 (. \ Page 4 of 2 5 1 2 3 4 5 6 7 8 9 10 11 12 00, 13 swz Yr I %E$ 14 owg dU, $054 &gg go0u 15 16 17 18 19 20 21 22 23 24 25 26 27 28 402 o czs - 4. Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as locations for engaging in unlawful sexual activity. 5. 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 community. 6. 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. F. 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 HIV/AIDS 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 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. G. 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, 211 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, 1993-1994, 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 Ordinance No. NS- 7 (0 \ Page 5 of 3 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: Gammoh v. La Habra, 395 F.3d 11 14 (9th Cir. 2005), petition for rehearing denied (April 1, 2005); Tily 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, lnc. v. King County, 804 F.2d 11 04, 1 110-1 I (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. whitfield 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. Gammoh v. La Habra, 395 F.3d 1114 (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 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. J. 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 . Ordinance No. Page 6 of 34 NS- 7L 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 * 24 25 26 27 28 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. a. 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 Clerk’s office. b. 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 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 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 ordinance NO. NS- 7 b I Page 7 of 34 I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. K. 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. M. 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 (Le., Penal Code § 313 et seq.). 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 Beny v. City of Santa Barbara, 40 Cal.App.4th 1075 (1995). Ordinance No. NS- 7 1 Page 8 of 34 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 N. 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 above mentioned studies have shown to be associated with the operation of adult businesses. 0. 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. P. 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 untimited 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. Q. 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 Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lady J. Lingerie, lnc. v. City of Jacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997); Lady J. Lingerie, lnc. v. City of Jacksonville, I76 F.3d 1358 (11th Cir. 1999); and City of Colorado Springs v. 2354 lnc., 896 P.2d 272 (1995). Ordinance NO. NS- 7 Page 9 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 R. 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, preserve property values and the character of surrounding neighborhoods and businesses, and deter the spread of urban blight. S. It is not the intent of the City Council of the City of Carlsbad in enacting this 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. T. 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 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. V. 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. W. The licensing and operation provisions of Chapter 8.60 are necessary in order to protect the public health, safety and welfare by providing a mechanism to address the adverse secondary effects associated with the establishment and operation of unregulated or under-regulated adult use businesses. SECTION 2. That 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, 21.43.110, and 21.43.130 entitled "Adult Entertainment" of the Carlsbad Municipal Code are hereby repealed in their entirety. These sections contain items that do not fit within the definition of Ordinance No. NS- 7 Page 10 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 "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 entitled "Adult Business Licenses and Operating Regulations" to read as follows: "CHAPTER 8.60 ADULT BUSINESS LICENSES AND OPERATING REGULATIONS 5 8.60.010. § 8.60.020. § 8.60.030. 3 8.60.040. § 8.60.050. § 8.60.060. § 8.60.070. § 8.60.080. § 8.60.090. 5 8.60.100. § 8.60.1 IO. § 8.60.120. § 8.60.1 30. 5 8.60.140. Purpose Definitions Operating Standards Adult Business License Felony Convictions 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. Ordinance No. NS- 7 L\ Page 11 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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, 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." 'fldult Booth/lndividual Viewing 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: (1) (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 (B) 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. 'Xdult HoteVMotel" 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 Where "adult arcade devices" are located. (5) (6) (7) Ordinance No. NS- 7 b ' Page 12 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 (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." "Adult Oriented Materid' 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." (8) (1 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 (10%). "Owner/License 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 above) as a new business; business," to any "adult business"; business"; (13) (14) Ordinance No. NS- 7 b I Page 13 of% FI 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 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 (B) Human male genitals in a discernibly turgid state, even if the areola; or completely or opaquely covered. (17) "Specified Sexual Acfivities" shall mean and include any of the following, irrespective of whether performed directly or indirectly through clothing or other covering : (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 Ordinance NO. NS- 7 b 1 Page 14 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and nearby public and private properties. Inoperable and/or broken lights shall be replaced within 24 hours. C. Interior Lighting Requirements. All interior areas of the adult business excepting therefrom adult hotels/motels shall be illuminated at a minimum of 1 .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." D. Regulation of Adult Booth/lndividual Viewing Area. 1. No adult booth/individual viewing area shall be occupied by more than one individual at a time. 2. Each adult booth/individual viewing area within the adult business shall be visible from a continuous and accessible main aisle in a public portion of the establishment, and shall not be obscured by any door, curtain, wall, two-way mirror or other device which would prohibit a person from seeing the entire interior of the adult booth/individual viewing area from the main aisle. A manager shall be stationed in the main aisle at all times. Further, no one shall maintain any adult booth/individual viewing area in any configuration unless the entire interior wherein the picture or entertainment that is viewed is visible from one main aisle. The entire body of any patron in any adult booth/individual viewing area must be visible from the main aisle without the assistance of mirrors or any other device. 3. No doors are permitted on an adult booth/individual viewing area. No partially or fully enclosed adult booth/individual viewing areas or partially or fully concealed adult booth/individual viewing areas shall be maintained. 4. No holes or other openings 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; Securitv 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@) 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. 5. Ordinance No. NS- 7 b I Page15ofX lb 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 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. 1. 2. H. If the adult business provides restrooms for patron use, it shall provide separate restroom facilities for male and female patrons. The restrooms shall be free from adult oriented material. Only one (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. Regulation of Public Restroom Facilities. 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. Adult Business Offering Adult Live Entertainment - Additional Operating J. Rea 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 18 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 1. 2. Ordinance No. NS- 7 b 1 Page 16 of 34 rl 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dancer shall have physical contact with any patron, and no patron shall have physical contact with any performer or adult cabaret dancer. 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 otherwise 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 entrancelexit 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 3. 4. 6. 7. 8. IO. Ordinance No. NS- 7 6 I Page 17 of 3 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the walk aisle. Nothing in this section is intended to exempt the adult business from compliance with the provisions of Title 24 of the California Code of Regulations pertaining to handicapped accessibility. K. Adult Motion Picture Theater - Additional Operatinn 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 Ordinance No. NS- 7 L I Page 18 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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: C. D. E. F. G. Ordinance NO. NS- 7 I Page 19 of 34 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. 5. The application complies with Section 8.60.040 (status of an 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. L.L.C.). 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. B. C. 1. 2. Ordinance NO. NS- 7G I Page 20 of 4 at 1 2 3 4 5 6 7 a 9 10 11 12 13 &E& a08 14 OWE dU, SO35 goo9 15 a;$? ZEZ: 16 czz 17 u 18 19 20 21 22 23 24 25 26 27 28 0 a> ZWZ zwm 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 5 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 5 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 5 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. 8.60.090 Suspension or Revocation of Adult Business License. Ordinance NO. NS- 76 I Page 21 of 34 aa 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. That the use for which the approval was granted has ceased to exist or has been suspended for six (6) months or more. 2. 3. 4. B. 1. 6. Ordinance No. NS- 7b Page 22 of 34 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 315, 316, 31 8 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 11054, 11 055, 11056, 11057, or 11058 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 (v) (vii) C. I. 2. Revocation of the license. 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. 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. Notice of the City Manager or Designated Hearing Officer’s decision and its findings shall include citation to California Code of Civil Procedure 5 1094.8. D. E. F. Ordinance NO. NS- 7G I Page 23 of 34 ,& 1 2 3 4 5 6 7 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G. 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. Emplovees/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. 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 (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 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. Eighteen (18) Years Prohibited; Twentv-One (21) if Liquor is Served. 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 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. Ordinance No. NS- 7 G 1 Page 24 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 con tin ued . 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. B. C. 8.60.1 30 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.’’ SECTION 4. Title 8 of the Carlsbad Municipal Code entitled “Adult Business Performer License” is hereby amended by the addition of Chapter 8.70 to read as follows: Ordinance No. NS- 7 b 1 Page 25 of 34. "CHAPTER 8.70 ADULT BUSINESS PERFORMER LICENSE § 8.70.010 § 8.70.020 § 8.70.030 5 8.70.040 § 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 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: B. C. Ordinance No. NS- 7 (e I Page 26 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. The license applicant's legal name and any other names (including 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 (1 8) 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 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 Counci I. 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 "stage names" and aliases) used by the applicant. locations. number(s) of the establishments at which the applicant intends to work. IO. D. E. Ordinance No. NS- 76 Page 27 of 3 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. H. 8.70.030 lnvestiqation 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 8.70.010, 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 (IO) 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: 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. Ordinance No. NS- 7 b ! Page 28 of 9' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 3. 4. 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 (18) 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 (1) 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 (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. G. H. 8.70.040 Revocation/Suspension/Denial of Adult Business Performer License. A. On determining that grounds for denial of a license, license revocation or suspension exist, the Chief of Police or his designee shall furnish written notice of the Ordinance No. NS- 7c I Page 29 of 3” 36 proposed action to the applicantkense 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 applicant/license 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 applicantkense 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 applicantkense 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: 1. 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 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 B. C. D. E. Ordinance No. NS- 7 le 1 Page 30 of 34 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. F. G. 8.70.050 Display 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. 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. Ordinance No. NS- 7 Page 31 of 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 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. B. C. 8.70.090 Reaulations 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. 8.70.1 00 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.” 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 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. Ordinance No. NS- 7 (4 1 Page 32 of 34 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 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.; andlor 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 711.2 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. 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. Ill Ill Ill Ill Ill Ordinance No. NS- 76 \ Page 33 of 34 3L1 1 2 3 4 5 6 7 8 9 10 11 12 &EQ 13 a08 14 Ow8 iUC3 $059 Ed= 15 u->g OOOU <;sz 16 002 Lorn 17 18 19 20 21 22 23 24 25 26 27 28 00, zwv) aod u czz EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption, and the City Clerk shall certify the adoption of this ordinance and cause it to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 28th day of JUNE ,2005, and thereafter PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the 5th day of JULY , 2005, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Packard, Sigafoose NOES: None ABSENT: Council Member Hall APPROVED AS TO FORM AND LEGALITY A A'ITEST: LORRAINE M. WaOD, City Cler (SEAL) Ordinance No. NS- 7bl Page 34 of 34