Chapter 5.08
ADULT BUSINESSES
Sections:
Article I. Adult Bookstores and
Motion Picture Theaters
5.08.010 Findings and purpose of provisions.
5.08.020 Definitions.
5.08.030 Permit – Required.
5.08.040 Exemption from permit requirements.
5.08.050 Permit – Application – Information required.
5.08.060 Permit – Application – Investigation.
5.08.070 Permit – Issuance restrictions.
5.08.080 Permit – Granted by Council resolution.
5.08.090 Permit – Transfer conditions.
5.08.100 Permit – Display requirements.
5.08.110 Premises – Location restrictions.
5.08.120 Hours of operation – Merchandise display restrictions.
5.08.130 Revocation of permit – Grounds – Public hearing required.
Article II. Display of Sexually Explicit
Reading Material
5.08.150 Findings and purpose of provisions.
5.08.160 Definitions.
5.08.170 Display restrictions – Commercial establishments.
5.08.180 Display restrictions – Establishments with “adults only” areas.
5.08.190 Materials with opaque covers.
5.08.200 Violation deemed nuisance – Enforcement and abatement costs made special assessment against parcel.
Article III. Adult Picture Arcades
5.08.310 Findings and purpose.
5.08.320 Picture arcade defined.
5.08.330 Visibility of interior.
5.08.340 Minimum lighting requirements.
5.08.350 Application.
Article IV. Live Adult Entertainment
5.08.410 Purpose and intent.
5.08.420 Definitions.
5.08.430 Live adult entertainment business permit.
5.08.440 Location.
5.08.450 Application.
5.08.460 Investigation and action on application.
5.08.470 Development regulations.
5.08.480 Operating regulations.
5.08.490 Abandonment.
5.08.500 Revocation.
5.08.510 Judicial review.
Article I. Adult Bookstores and
Motion Picture Theaters
5.08.010 Findings and purpose of provisions.
The City Council determines and declares that adult bookstores and adult motion picture theaters, as hereinafter defined, have serious objectionable characteristics, particularly when several of such businesses are located in close proximity to each other and in close proximity to schools and residences; that such concentration tends to create a “skid row” atmosphere and have a detrimental effect upon the adjacent area; that regulation of the location and covenant of these types of businesses is necessary to insure that such adverse effects will not contribute to the blight or downgrading of neighborhoods or deter or interfere with other businesses which are needed and desirable in the City. It is the purpose and intent of this chapter to provide for the orderly regulation of the business of adult bookstores and adult motion picture theaters by establishing certain minimum requirements for the issuance of a permit to operate such businesses and certain minimum standards for the conduct of this type of commercial operation in order to protect the public health and welfare of the residents of the City. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.1)
5.08.020 Definitions.
For the purpose of this chapter, the following words and phrases shall have the meaning hereinafter set forth:
A. “Adult bookstore” means any building or portion thereof used by an establishment having as a substantial or significant portion of its stock-in-trade for sale to the public books, magazines and other publications which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, or having as any part of its stock for sale mechanical or electrical devices which are distinguished or characterized by their emphasis on use for specified sexual activities or stimulation of specified anatomical areas.
B. “Adult motion picture theaters” means a building or portion thereof, or area, whether open or enclosed, used for the presentation of motion pictures distinguished or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons or customers.
C. “Specified anatomical areas” means less than completely and opaquely covered human genitals, pubic region, buttock and female breast below the point immediately above the top of the areola.
D. “Specified sexual activities” means any of the following:
1. Human genitals in the state of sexual stimulation or arousal;
2. Acts of human masturbation, sexual intercourse, sodomy, or bestiality; or
3. Fondling or other erotic touching of human genitals, pubic region, buttock or female breast. (1960 code § 2A.2)
5.08.030 Permit – Required.
It is unlawful for any person, association, partnership or corporation to engage in, conduct, carry on, or permit to be engaged in, conducted or carried on, in or on any premises in the City, the operation of an adult bookstore or an adult motion picture theater without a valid permit issued pursuant to the provisions of this article. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.3)
5.08.040 Exemption from permit requirements.
The provisions of this article shall not apply to any person who is engaging in, conducting or carrying on a lawful business as an owner or operator of an adult bookstore or an adult motion picture theater, in compliance with all applicable laws, as of the effective date of the ordinance codified in this article. (1960 code § 2A.9)*
*Code reviser’s note: Ordinance 969, codified in Article I of Chapter 5.08 LMC, was adopted October 23, 1978.
5.08.050 Permit – Application – Information required.
Any person, association, partnership or corporation desiring to obtain a permit to operate an adult bookstore or adult motion picture theater shall make an application to the City Council, accompanied by a nonrefundable fee in the amount of $50.00, containing the following information:
A. The full true name and any other names used by the applicant;
B. The present address and telephone number of the applicant;
C. The proposed address of the adult bookstore or adult motion picture theater;
D. Each residence or business address of the applicant for the three years immediately preceding the date of the application and the inclusive dates of each such address;
E. Written proof that the applicant is at least 18 years of age;
F. Two photographs of the applicant, at least two inches by two inches, taken within six months immediately preceding the date of the application; one photograph shall be retained by the City Council, and one photograph shall be affixed to the permit;
G. The applicant’s business, occupation and employment history for the three years immediately preceding the date of application;
H. The business license or permit history of the applicant; whether such applicant has ever had any license or permit issued by any agency or board, city, county or state, revoked or suspended, or has had any professional or vocational license or permit revoked or suspended, and the reason therefor;
I. All criminal convictions, except traffic violations, and a statement of the dates and places of such convictions;
J. Corporate and/or Partnership Applicants.
1. If the applicant is a corporation, the names of the corporation shall be set forth exactly as shown in its articles of incorporation or charter, together with the state and date of incorporation and names and residence addresses of each of its current officers and directors and of each stockholder holding more than five percent of the stock in the corporation.
2. If the applicant is a partnership, the application shall set forth the name and residence addresses of each of the partners, including limited partners.
3. If one or more of the partners is a corporation, the provisions of this section pertaining to corporate applicants shall apply.
4. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer;
K. The name and address of the owner and lessor of the real property upon which or in which the business is to be conducted, and a copy of the lease or rental agreement;
L. Such other identification and information as may be required in order to discover the truth of the matters herein specified as required to be set forth in the application. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.4(a))
5.08.060 Permit – Application – Investigation.
The City Council shall undertake whatever investigation it may deem necessary into the background of the applicant and the information contained in the application, and may request a written report from the Chief of Police concerning any or all matters stated in the application. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.4(b))
5.08.070 Permit – Issuance restrictions.
A permit shall be issued to an applicant within a reasonable time after receipt of a completed application pursuant to LMC 5.08.050, subject to the completion of such investigation as may be required to verify any information contained therein; provided, that:
A. The applicant has not knowingly made a material false statement in the application for the permit;
B. The applicant, if an individual, or in the case of an applicant which is a corporation or partnership, any of its officers, directors, holders of five percent or more of the corporation’s stock, or partners, has not within five years immediately preceding the date of the filing of the application been convicted in a court of competent jurisdiction of any of the following offenses: Sections 266i, 315, 316, 318, or subdivision (b) of Section 647 of the California Penal Code, or any offense which requires registration as a sex offender with the Chief of Police under Penal Code Section 290, or any offense in another state which, if committed in this state, would have been punishable as one or more of the foregoing offenses;
C. The applicant is at least 18 years of age;
D. The operation of the adult bookstore or adult motion picture theater proposed by the applicant would comply with all applicable laws, including, but not limited to, health, zoning, and fire and safety requirements and standards;
E. The location of the adult bookstore or adult motion picture theater proposed by the applicant would not be in violation of any of the provisions of LMC 5.08.100, 5.08.110 or 5.08.120. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.4(d))
5.08.080 Permit – Granted by Council resolution.
Permits required by this article shall be granted or revoked only by resolution passed by the City Council. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.4(c))
5.08.090 Permit – Transfer conditions.
No permit issued pursuant to this article shall be assigned or transferred except upon permission of the City Council, after submission of an application by the proposed assignee or transferee, as required by LMC 5.08.050 through 5.08.080, payment of a transfer fee of $50.00, completion of a proper investigation, and adoption of a resolution permitting transfer or assignment of the permit. Thirty days after the sale or transfer of any interest in an adult bookstore or adult motion picture theater, any permit previously issued authorizing the operation of either such business shall be null and void. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.7)
5.08.100 Permit – Display requirements.
A permit issued to any applicant to operate an adult bookstore or an adult motion picture theater shall be displayed in an open and conspicuous public place on the premises. (1960 code § 2A.5)
5.08.110 Premises – Location restrictions.
A. No adult bookstore or adult motion picture theater shall be located on any property, or any portion thereof, which is within 1,000 feet of any property or portion thereof used for any elementary school, junior high school or public playground.
B. No adult bookstore or adult motion picture theater shall be located on any property, or any portion thereof, which is within 1,000 feet of any other property or portion thereof on which an adult bookstore or an adult motion picture theater is located and doing business.
C. No adult bookstore or adult motion picture theater shall be located on any property, or portion thereof, which is within 1,000 feet of any lot or parcel of property, or portion thereof, which is located in a zone district which designates single-family or multiple-family residential uses as permitted uses. (1960 code § 2A.6)
5.08.120 Hours of operation – Merchandise display restrictions.
A. Adult bookstores and adult motion picture theaters shall conduct business, and the premises shall be open to the public, only between the hours of 9:00 a.m. and 12:00 midnight.
B. No adult bookstore or adult motion picture theater shall advertise, or display portions of, or posters concerning any of its stock-in-trade (such as books, magazines or motion pictures) in such a way as to render such advertisement or display visible from any public street, thoroughfare, private residence or business premises, if such advertisement or display contains photographs or language depicting or referring to specified sexual activities or specified anatomical areas. (1960 code § 2A.5)
5.08.130 Revocation of permit – Grounds – Public hearing required.
A. Grounds for Initiation of Permit Suspension or Revocation Proceedings. Suspension or revocation proceedings may be initiated by the Chief of Police if, after due investigation, the Chief of Police or the City Manager finds and determines that the permittee, his agent or employee has:
1. Permitted any disturbance of the public order or decorum by any noisy, riotous or disorderly conduct on the premises;
2. Permitted any lewd, dissolute or intoxicated person to be or remain on the premises;
3. Permitted any conduct which would, if prosecuted as a similar offense, constitute a violation of state law prohibiting:
a. Sexual crimes including, but not limited to, Penal Code sections 266, 266a, 266c, 266d, 266e, 266f, 266h, or 266i;
b. Distribution or exhibition of harmful matter, including, but not limited to Penal Code section 313.1;
c. Lewd or obscene conduct including, but not limited to, violations of Penal Code sections 314, 315, 316, 318, 318.5, or 318.6; or
d. Disorderly conduct, including, but not limited to, Penal Code section 647, subsections (a), (b), (d), and (f);
4. Allowed conduct which would constitute a violation of Health and Safety Code sections 11054 through 11058 to occur on or adjacent to the premises;
5. Knowingly permitted any persons under 18 years of age to enter or remain upon the premises;
6. Failed to abide by all laws and ordinances now in effect or which may hereafter be duly enacted.
B. Permit Suspension or Revocation Proceedings. The Chief of Police may initiate the suspension or permanent revocation of any permit granted pursuant to this article if the Chief of Police determines that such action is necessary in order to prevent any further violations of this chapter or the laws of this state.
1. Notice. The Chief of Police shall give written notice of each local or state law violation warranting the initiation of revocation proceedings, which shall be served upon the permittee, in person or by mail, or posted on the premises at the business address listed in the permit.
2. Administrative Hearing. At least 10 but not more than 30 days after service of the notice of permit suspension or revocation proceedings, the City Manager shall conduct an administrative hearing.
a. Written notice of the time and place of hearing on the matter shall be given by the city clerk to the permittee and to the Chief of Police, and upon receipt of such notice of hearing, the Chief of Police shall forward to the City Manager all notices and reports to the matter.
b. Upon the hearing on the matter, the City Manager may take such action or make such order as the City Manager may deem just and proper in the disposition of the matter, including reinstating the permit, suspending the permit for a specified period of time, or permanently revoking the permit. The decision of the City Manager shall be final. (Ord. 2065 § 1(A), 2018; Ord. 1582 § 1, 2000; 1960 code § 2A.8)
Article II. Display of Sexually Explicit
Reading Material
5.08.150 Findings and purpose of provisions.
The City Council finds and declares that there exists in the City a tendency toward a display of adult magazines and books in liquor stores, grocery markets, drugstores and other retail outlets in such a manner that children, often of tender years, are exposed to explicit sexual activity and showing human genitals and pubic regions in a sexually explicit manner. The City Council finds that such exposure establishes a tone in the community inconsistent with morality and good order. The Council, therefore, finds that it is in the best interest of public health, safety and welfare to restrict the display of reading material with sexually explicit covers and to adopt the following regulations so that the adverse impacts of such material on children and the community as a whole will be kept to a minimum. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.12)
5.08.160 Definitions.
The following words and phrases used in this article shall be defined as follows:
A. “Commercial establishment” means any place of business in which minors are permitted in the City;
B. “Sexually explicit covers” means any picture, photograph, drawing, decoration or other illustration depicting specified sexual activities or specified anatomical areas, as defined in LMC 5.08.020. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.13)
5.08.170 Display restrictions – Commercial establishments.
No person shall display reading material having sexually explicit covers in any commercial establishment in the City except as provided in this article. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.14)
5.08.180 Display restrictions – Establishments with “adults only” areas.
Reading material having sexually explicit covers may be displayed in a commercial establishment in an area set aside and clearly posted for adults only. “Adults only” areas shall be visible from the cash register or sales center of the store. No items frequently purchased by children shall be located in the vicinity of the “adults only” area, and the material with sexually explicit covers shall be displayed in such a manner that sexually explicit depictions are not readily visible to patrons in other areas of the store. Minors shall not be permitted to enter an “adults only” area. (1960 code § 2A.15)
5.08.190 Materials with opaque covers.
Reading materials having sexually explicit covers may be displayed in an area open to the general public in a commercial establishment only if the cover depictions are not visible. Opaque display units showing only the top two inches of magazine covers shall be deemed to comply with this section. (1960 code § 2A.16)
5.08.200 Violation deemed nuisance – Enforcement and abatement costs made special assessment against parcel.
A. Notwithstanding any other section of this code, no criminal penalty is provided for the violation of this article. Violation of any section or sections of this article is declared to be a public nuisance and may be abated by the City.
B. Pursuant to Government Code Section 38773.5, the cost of the abatement of the nuisance shall constitute a special assessment against the parcel on which the nuisance exists. Such assessment may be collected at the same time and in the-same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to levy, collection and enforcement of municipal taxes shall be applicable to such special assessment. (Ord. 2065 § 1(A), 2018; 1960 code § 2A.17)
Article III. Adult Picture Arcades
5.08.310 Findings and purpose.
A. Enclosed or concealed booths and unlit or dimly lit areas within picture arcades greatly increase the potential for misuse of the premises, including unlawful conduct of a type which may result in unsanitary conditions and facilitate transmission of disease.
B. The provisions of this article are necessary in order to reduce the opportunity for, and therefore the incidence of illegal conduct and potential unhealthy and unsanitary conditions within picture arcades, and to facilitate the inspection of the interior of the premises thereof by law enforcement personnel. (Ord. 1252 § 1, 1987)
5.08.320 Picture arcade defined.
As used in this article, “picture arcade” means any room in any business to which the public can gain admittance wherein one or more coin or slug-operated, or electrically, electronically, or mechanically controlled still or motion picture machines or projectors or video monitors are designed, operated or maintained to show adult still or motion pictures or videos to five or fewer persons per machine, projector or monitor at any one time. (Ord. 1252 § 1, 1987)
5.08.330 Visibility of interior.
It is unlawful for any person, partnership, corporation or other entity to own, operate, maintain or manage an adult picture arcade in any business unless the complete interior of the portion of the premises where the pictures can be viewed is continuously open and fully visible to any person entering the premises containing such picture arcade. Booths within picture arcades wherein still or motion pictures or videos are viewed shall be prohibited unless the bottom 36 inches’ portion (measured from the floor upward) of the door or entrance of each booth is removed and is continuously open. (Ord. 1252 § 1, 1987)
5.08.340 Minimum lighting requirements.
A minimum level of two foot-candle illumination shall be maintained during hours of operation in all parts of any adult picture arcade which are open to the public. (Ord. 1252 § 1, 1987)
5.08.350 Application.
Any business providing picture arcades lawfully in existence on November 1, 1987, and made illegal by the provisions of this article shall conform to the provisions thereof within 90 days of adoption of the ordinance codified in this article. (Ord. 1252 § 1, 1987)
Article IV. Live Adult Entertainment
5.08.410 Purpose and intent.
A. Purpose. It is the purpose of this article to:
1. Establish reasonable and uniform regulations to prevent the concentration of live adult entertainment businesses and their close proximity to other adult-oriented businesses and incompatible uses, while allowing the location of live adult entertainment in certain areas; and
2. Regulate live adult entertainment businesses in order to promote the health, safety, and general welfare of the citizens of the City.
B. Intent. It is the intent of this article to provide location, development, and operating regulations to regulate the time, place, and manner of the operation of live adult entertainment businesses in order to minimize the negative secondary effects associated with these businesses including, but not limited to, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of adult businesses in close proximity to each other or proximity to other incompatible uses, including churches, parks, playgrounds, schools, and residential zones and legal nonconforming residential uses. In addition to its prior findings, determinations, and declarations regarding the negative secondary effects associated with adult-oriented bookstores, motion picture theaters, and arcades, and the display of adult magazines and books, the City Council finds that it has been demonstrated in various communities that the concentration of adult businesses tends to create a “skid row” atmosphere and have a detrimental effect upon the adjacent area, to cause an increase in the number of transients in the area, and to increase crime. In addition to mitigating the effects described above, the City desires to ensure that such adverse effects will not contribute to the blight or downgrading of neighborhoods or deter or interfere with other businesses which are needed and desirable or cause other businesses and residents to move elsewhere.
C. Not Purpose, Intent, or Effect. The provisions of this article have neither the purpose nor the effect of imposing a limitation or restriction on the content of any communicative materials, including adult-oriented materials. Similarly, it is not the intent or the effect of this article to restrict or deny access by adults to adult-oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult-oriented entertainment to their intended market, nor is it the intent or the effect of this article to condone or legitimize the distribution of obscene material. (Ord. 2065 § 1(A), 2018; Ord. 1885 § 4 (Exh. B), 2009)
5.08.420 Definitions.
For the purposes of this article, unless the context clearly requires a different meaning, the words, terms and phrases set forth in this article shall have the meanings given them in this section.
A. “Adult-oriented business” shall mean any business which offers or engages in the following activities and uses:
1. Adult Bookstore. An “adult bookstore” as that term is defined in Article I of this chapter;
2. Adult Motion Picture Theater. An “adult motion picture theater” as that term is defined in Article I of this chapter;
3. Adult Picture Arcade. An “adult picture arcade” as that term is defined in Article III of this chapter; and
4. Live Adult Entertainment Business. A “live adult entertainment business” defined in subsection D of this section.
B. “Entertainer” shall mean any person performing live adult entertainment, with or without compensation.
C. Establishment of a Live Adult Entertainment Business. The “establishment of a live adult entertainment business” shall mean any of the following:
1. The opening or commencement of a live adult entertainment business as a new business;
2. The conversion of an existing business, whether or not an adult-oriented business, to a live adult entertainment business;
3. The addition of a live adult entertainment business to any other existing adult-oriented business;
4. The change in the location of an existing live adult entertainment business to a new building or site; or
5. A change to the building, site, or interior configuration for an existing live adult entertainment business which increases the total floor area or performance area by more than 10 percent.
D. “Live adult entertainment business” means a business that features as a regular and substantial course of its conduct any type of dance, performance, show, exhibition, or other activity by an entertainer physically present at the business and which is characterized by an emphasis on the display of specified anatomical areas, or the performance of physical human body activity that depicts or relates to specified sexual activities whether or not the anatomical areas are covered, or both.
E. Patron. A “patron” means any member of the public who is a customer, buyer, guest, or visitor entering a live adult entertainment business to observe a performance or otherwise patronize the business.
F. “Specified anatomical areas” means less than completely and opaquely covered human genitalia, pubic region, buttock and female breast below a point immediately above the top of the areola, and human male genitalia in a discernibly turgid state even if completely and opaquely covered.
G. “Specified sexual activities” means human genitalia in a state of sexual stimulation or arousal; acts of human masturbation, sexual intercourse or sodomy; or fondling or other erotic touching of human genitalia, buttocks, or female breasts. (Ord. 1885 § 4 (Exh. B), 2009)
5.08.430 Live adult entertainment business permit.
A. Permit Required. It is unlawful for any person to establish, own, or operate a live adult entertainment business in the City, unless the person first obtains a permit in compliance with this article. A live adult entertainment business may not be established by right.
B. Application. Any person who wants to establish, own, or operate a live adult entertainment business within the City shall apply to the City as provided in LMC 5.08.450 for investigation and action as provided in LMC 5.08.460.
C. Compliance. A permit for a live adult entertainment business shall be subject to and comply with all the provisions of this article including all location, development, and operating regulations.
D. Eligibility. All persons are eligible to apply for a live adult entertainment business permit except the following persons who shall be ineligible as provided herein:
1. Any person determined by the Police Chief pursuant to LMC 5.08.460(B) to be prohibited from establishing, owning, or operating a live adult entertainment business shall be ineligible to apply for a permit for a period of one year from the date of the determination; or
2. Any person, or any business owned, operated, or controlled by a person, previously granted a live adult entertainment business permit by the City that was revoked or suspended pursuant to LMC 5.08.500, abandoned as provided in LMC 5.08.490, or surrendered as provided in subsection E of this section shall be ineligible to apply for a permit for a period of one year from the date of revocation, suspension, or surrender.
E. Transferability. A live adult entertainment business permit may be sold, transferred, or assigned by the permittee, or by operation of law, to any person who has:
1. Submitted the background materials to the Police Chief required by LMC 5.08.450(P)(1); and
2. After a background investigation, been determined by the Police Chief, or his or her designee, pursuant to LMC 5.08.460(B) to not be prohibited from establishing, owning, or operating a live adult entertainment business.
Any sale, transfer, or assignment not complying with this section shall be deemed to be a voluntary surrender of the live adult entertainment business permit.
F. Other Permits. The grant of a live adult entertainment permit is not intended to excuse compliance with any other regulation that would otherwise apply to the building or property where the live adult entertainment business is located, including but not limited to the Uniform Building, Uniform Fire, Uniform Electrical and Uniform Plumbing Codes. Likewise, the grant of a live adult entertainment permit is not intended to excuse compliance with any other regulation that would otherwise apply to the development construction of a building or property. (Ord. 2065 § 1(A), 2018; Ord. 1885 § 4 (Exh. B), 2009)
5.08.440 Location.
A. Zoning. A live adult entertainment business shall not be established in any zoning district other than the heavy industrial (I-3) zoning district, subject to the regulations set forth in this article.
B. Separation.
1. Specified Land Uses. Within the heavy industrial (I-3) zoning district, it is unlawful to establish a live adult entertainment business within 1,000 feet of the following specified land uses:
a. Any licensed facility for the instruction or care of minors (for example, including but not limited to a school or licensed child care center, preschool center, or nursery), or any site identified on the general plan land use map as a potential future school location for the instruction of minors;
b. Any approved facility that meets the definitions of “commercial amusement facility” or “commercial recreation facility,” as those terms are defined in LDC Part 11, which is open to minors;
c. A residential zoning district; the residential area of a planned unit development permit; any site with a general plan land use designation that is residential or transferable development credit (TDC) receiver (R) site; or any legally existing “dwelling unit” as that term is defined in LDC Part 11. This separation requirement shall not apply to living quarters approved for surveillance purposes in an approved industrial use;
d. Any land designated the education and institutions (E) zoning district;
e. Any approved business licensed by the Department of Alcohol and Beverage Control to sell alcohol for consumption, whether on site or off site;
f. “Parks” or “park and recreational area, public,” as those terms are defined in LDC Part 11 with the exception of trails, or any site identified on the general plan land use map as a potential future park location;
g. A public library;
h. A church or other religious facility or institution used primarily for the purpose of religious exercise; and
i. Any other adult-oriented business.
2. Measurement. The distance between the live adult entertainment business and a specified land use shall be measured in a straight line, without regard to intervening structures, from the closest exterior wall of building to be occupied by the live adult entertainment business to the closest property line of the specified land use, except that the distance between the proposed live adult entertainment business and another adult-oriented business or business selling alcohol for off-site consumption shall be measured in a straight line, without regard to intervening structures, from the closest exterior walls of the buildings for the respective establishments. (Ord. 1901 § 3 (Exh. A § 8), 2010; Ord. 1885 § 4 (Exh. B), 2009)
5.08.450 Application.
Any person who wants to establish, own, or operate a live adult entertainment business within the City shall file with the community development department a permit application on a standard form supplied by the City and shall pay the application filing fee as established by the City Council as provided herein. The applicant has the responsibility and the burden to supply evidence to justify the grant of a live adult entertainment business permit.
All applications shall include the following information collated in one original set and two separate and identical collated copies:
A. Identity of the Applicant. The applicant shall provide the following identifying information:
1. If the applicant is an individual, the individual shall state his or her legal name and any aliases, and the current addresses for the individual’s primary place of business and residence.
2. If the applicant is a partnership, the applicant shall state the partnership’s full and complete name, whether the partnership is general or limited, and the current address for the partnership’s principal place of business. In addition, the applicant shall provide the names and aliases for all partners as well as their current residential addresses. The applicant shall also attach to the application a current copy of the partnership agreement to the application.
3. If the applicant is a corporation, the applicant shall state the corporation’s full and complete name, corporate identification number, the state where it is incorporated, the date of its incorporation, and evidence that the corporation is qualified to do business and in good standing under the laws of California. In addition, the applicant shall provide the name of the registered corporate agent and the address of the registered agent for service of process. The applicant shall also provide the names and aliases and capacities of all officers and directors. The applicant shall further state the names and aliases for each controlling member of the corporation. A controlling member of a corporation shall mean any person owning or controlling more than 20 percent of the corporation’s voting stock.
4. If the applicant intends to operate the live adult entertainment business under any name other than that of the applicant, the applicant shall file and maintain a fictitious business name statement in Alameda County. The applicant shall also attach to the application proof of registration of the fictitious name.
B. Contact Information. The applicant’s telephone number and address where correspondence related to the application, including the notice of action, is to be delivered.
C. Location. The street address, building number, and assessor’s parcel number for the property where the proposed live adult entertainment business is to be established or operated. The applicant shall also describe all other businesses on the property.
D. Signatures. The applicant shall sign the application under penalty of perjury stating that the information contained in the application is true and correct, and shall provide satisfactory written proof that he or she is at least 18 years of age. However, if the applicant is a partnership or corporation, a partner or an officer with the authority to bind the business entity shall sign the application under penalty of perjury stating that the information contained in the application is true and correct, and shall provide satisfactory written proof that he or she is at least 18 years of age.
The application shall also be signed by the property owner authorizing the applicant to apply for a live adult entertainment business permit to be established and operated at the business site.
E. Prior Applications. The applicant shall state whether the City previously denied an application by the applicant for a live adult entertainment business permit. If an application was denied, the applicant shall also state the date when it was denied.
F. Prior Permits. The applicant shall state whether he, she, or the business entity was previously granted a live adult entertainment business permit by the City. If a prior permit was granted, the applicant shall also state the date when the permit was issued, and if applicable, the date when the permit was surrendered, suspended, or revoked.
G. Other Live Adult Entertainment Permits. The location of any other adult-oriented business permitted, owned, or operated by the applicant in the City or any other jurisdiction. The applicant shall also state whether he, she, or the business entity applying to the City for a live adult entertainment business permit was ever denied a permit for an adult-oriented business use by any other public agency, or had a permit of an adult-oriented business use revoked or suspended by any other public agency. If an application was denied, or a permit was revoked or suspended, by another public agency, the applicant shall also state the name of the other public agency and the date when the application was denied or the date when the permit was revoked or suspended.
H. Verification. The application shall contain the following verification which shall be completed and signed by the applicant, or person signing the application on behalf of the business entity:
I hereby acknowledge and agree that I have read and understand Article IV of Chapter 5.08 of the Livermore Municipal Code for Live Adult Entertainment Businesses, including the location, development, and operating regulations contained therein; and, hereby further acknowledge and agree that I intend to and shall comply therewith.
Dated: __________ Signed: _____________
I. Property Owner. The application shall contain the following statement which shall be completed and signed by a property owner with a controlling interest in the proposed site for the live adult entertainment business:
I am the owner of the property located at _________________ [insert address, or the current assessor parcel number(s) for undeveloped land]. I understand and consent to the applicant’s establishment of a live adult entertainment business on the property.
Dated: __________ Signed: _____________
The property owner’s signature shall be notarized no less than 90 days prior to the date the application is submitted to the City. The applicant shall also provide proof of the property owner’s controlling interest in the proposed site.
J. Business Description. The applicant shall provide an exact description of the proposed live adult entertainment business, as well as any accessory or ancillary uses to be conducted along with the live adult entertainment business, including:
1. A description of the business activities to be conducted;
2. A statement whether the entertainers will be topless, bottomless, or totally nude;
3. The proposed hours of operation;
4. The job titles and descriptions for all employees, independent contractors, entertainers, and other persons who will be working or performing at the live adult entertainment business;
5. The number of employees, independent contractors, and entertainers expected to be present during hours of operation and during hours when the business is open to the public, and which employees, independent contractors, and entertainers are expected to be at the business when it is not open to the public;
6. Whether the proposed business is a franchise or is affiliated with other businesses, and the identities, street addresses, and contact information of those other businesses.
K. Site Plan. The applicant shall also submit a scale site plan showing all existing and proposed structures, parking areas including a description of the parking stalls serving the business, landscaping, walls, driveways, curb cuts, signs including size and proposed design, garbage receptacle storage areas, lighting, ground- and rooftop-mounted equipment, and topographical features of the property for the proposed site for the live adult entertainment business. Included with the site plan shall be a table or other appropriate means of describing the total area in square feet of the space to be used for the business and a breakdown of the total floor area identifying how many square feet will be devoted to different subcategories of space including but not limited to office, lobby, patron assembly area, performance area, storage, restrooms and other open and enclosed areas and facilities. In addition, the site plan shall indicate on the building for the live adult entertainment business the locations of all existing and proposed doors and windows, which shall conform to the corresponding locations on the diagram of interior configuration. The applicant shall also show the location of the other businesses on the property that were identified in subsection C of this section.
L. Diagram of Interior Configuration. The applicant shall submit a scale diagram showing the existing and proposed interior configuration of the building for the live adult entertainment business, including:
1. The total floor area for the building;
2. The floor areas open to the public and the floor areas restricted to entertainers and employees;
3. The location of all entrances and exits;
4. The location of the performance area for live entertainment;
5. The location and configuration for all seats and tables for the live adult entertainment business;
6. The location of all existing and proposed entrances, windows including size, exits, hallways, offices, rooms, restrooms, cooking areas, storage areas, table areas, stages, booths, seating areas, manager stations, dressing rooms, and other tenant improvements;
7. All dividing structures including but not limited to walls, fences, rails, and partitions, and for each dividing structure identify its height, material, and whether it is fully opaque or partly or fully transparent;
8. The floor area and location of any and all accessory and ancillary uses to be conducted in the same building as the live adult entertainment business; and
9. Such other improvements as may be necessary to show the interior layout of the live adult entertainment business will comply with the development and operating regulations in this article, the Livermore Development Code, and the Municipal Code.
M. Lighting Studies. The applicant shall submit photometric studies by a licensed lighting engineer documenting satisfaction of the interior and exterior lighting requirements in the development regulations set forth in LMC 5.08.470.
N. Traffic Study. The applicant shall submit a traffic study identifying any significant traffic impacts during the morning or evening commute peak periods. The traffic study must show that the live adult entertainment business is served by streets and highways adequate to carry the type and quantity of traffic generated by the use from the standpoint of location or proximity and width of right-of-way. The traffic study shall also identify improvements necessary to mitigate the traffic impacts. Upon written request by the applicant, this requirement may be modified or waived by the Community Development Director if it is found the proposed use will not have significant traffic impacts in the morning or evening commute peak periods.
O. CEQA Compliance. The applicant shall complete and submit an environmental assessment form describing the project and its potential environmental impacts for purposes of complying with the California Environmental Quality Act (CEQA) and shall pay any applicable CEQA application and filing fees.
P. Information for Police Chief’s Review. All applicants for a live adult entertainment business permit shall consent to a background investigation to determine whether he, she, or the business is eligible to receive a live adult entertainment business permit, or is otherwise prohibited. In furtherance of that purpose, the applicant shall provide the following information in a sealed envelope as part of the application:
1. Background Materials. The applicant shall complete and sign the standard background investigation form supplied by the Livermore police department, and shall provide a copy of the driver’s license or identification card issued by a state department of motor vehicles, a passport size photograph, and fingerprints taken by the Livermore police department or at a facility approved by the Livermore police department. The applicant shall also state the full name and any aliases, date of birth, Social Security number, employment history or occupation for the five years prior to the application, as well as every residential and employment address for the five years prior to the application, for each of the following:
a. Individual who is an applicant, or signs the application on behalf of a business entity; and
b. All partners, or all controlling members of a corporation, for a business entity applicant.
2. Security Program. The applicant shall prepare and submit a security program satisfying the security requirements of the operating regulations set forth in LMC 5.08.480(R).
Q. Fees. The City Council shall establish by resolution an application fee for a live adult entertainment business permit based upon the estimated reasonable costs to process the application and administer the regulations set forth in this article.
R. Data Summary. The applicant shall submit an itemized list, describing how he, she, or the business entity intends to comply with each of the development regulations in LMC 5.08.470 and each operating regulation in LMC 5.08.480. The applicant shall also provide the required information or refer the City to a document or plan submitted with the application, and page number(s) thereon, where the information can be found. (Ord. 2065 § 1(A), 2018; Ord. 2045 §§ 1(A), 1(B), 2016; Ord. 2016 §§ 1(A), 1(B), 2015; Ord. 1901 § 3 (Exh. A § 9), 2010; Ord. 1885 § 4 (Exh. B), 2009)
5.08.460 Investigation and action on application.
An application for a live adult entertainment business permit shall be time and date stamped upon receipt. The application shall be forwarded to the City’s Community Development Director, or his or her designee, for investigation and action as provided in this section. The Community Development Director, or his or her designee, shall conduct a preliminary investigation to determine whether the applicant is eligible to apply for a live adult entertainment business permit. If the applicant is ineligible, the application will be returned to the applicant. If the applicant is eligible, the Community Development Director, or his or her designee, shall receive the application and immediately commence the review for completeness and thereafter investigation. Also, upon receipt of an application, the Community Development Director, or his or her designee, shall immediately label and forward the sealed envelope containing the information for the Police Chief’s review to his or her attention for review as to completeness, and for investigation and reporting to the Community Development Director as provided herein.
A. Determination of Completeness.
1. Police Department. Within 20 calendar days of the date the application is received and stamped, the Police Chief, or his or her designee, shall report to the Community Development Director whether the sealed envelope contains the information required by LMC 5.08.450(P) for the Police Chief’s review.
2. Community Development Department. Within 30 calendar days of the date the application is received and stamped, the Community Development Director, or his or her designee, shall determine whether it is complete and contains all the information required by LMC 5.08.450.
a. Complete. If the application is determined to be complete and to contain the required information, the Community Development Director shall investigate the application to determine whether it shall be granted or denied. As part of that investigation, the Police Chief, or his or her designee, shall examine the information provided in the sealed envelope and conduct an investigation to determine whether the security program is adequate and any of the persons identified by the applicant are prohibited from establishing, owning or operating a live adult entertainment business.
b. Incomplete. If the application is determined to be incomplete, the Community Development Director, or his or her designee, shall mail the applicant written notice of the determination and the reasons therefor. The applicant shall have 30 calendar days from the notice date to submit an amended application correcting the deficiencies. Failure to submit an amended application within the 30-day period shall automatically void the application. An amended application shall be time and date stamped upon receipt. If timely, the amended application shall be forwarded to the Community Development Director and Police Chief to again determine, within 30 calendar days of the date the amended application was received, whether the application is complete and contains the required information. The evaluation and notification shall continue as provided herein until the application is determined to be complete or the application is voided.
B. Police Department Investigation. The Police Chief, or his or her designee, shall investigate the information and materials provided by the applicant to determine whether the applicant, or any partner or controlling members of a corporation for a business entity applicant, is prohibited from establishing, owning, or operating a live adult entertainment business for the reasons set forth in subsection D of this section. In addition, the Police Chief, or his or her designee, shall review the security program to determine whether it is adequate for the proposed live adult entertainment business.
C. Determination Whether to Grant or Deny. Within 60 calendar days of the date when the application for a live adult entertainment business permit is deemed complete, the Community Development Director, or his or her designee, shall investigate the application and either grant the permit subject to the conditions contained in this article, including the location, development, and operating regulations contained therein, or deny the application. The decision on the application shall be delivered via certified mail to the applicant. Any denial of an application shall be accompanied by a written statement articulating the reasons why the application was denied. The determination whether to grant or deny an application for a live adult entertainment business permit shall be based upon the following:
1. Grounds to Grant. The Community Development Director, or his or her designee, shall grant an application for a live adult entertainment business permit where the information submitted by the applicant substantiates all of the following findings:
a. The applicant is over the age of 18 years;
b. The required application fees have been paid;
c. The applicant is eligible to apply for a live adult entertainment business permit;
d. The business description complies with the definition of a live adult entertainment business;
e. The property owner consents to the operation of a live adult entertainment business on the site;
f. The site for the live adult entertainment business complies with the location regulations set forth in LMC 5.08.440;
g. The site plan and interior configuration of the proposed live adult entertainment business complies with the development regulations set forth in LMC 5.08.470;
h. The proposed live adult entertainment business described in the application complies with the operating regulations set forth in LMC 5.08.480;
i. The Police Chief provides a report finding:
i. The individual signing the application, or any partner or controlling members of a corporation for a business entity applicant, is or are not prohibited from establishing, owning, or operating a live adult entertainment business as provided in subsection D of this section.
ii. The security program satisfies the requirements of the operating regulations set forth in LMC 5.08.480(R) for the proposed live adult entertainment business.
2. Grounds to Deny. The Community Development Director, or his or her designee, shall deny an application for a live adult entertainment business permit where the information submitted by the applicant substantiates any one of the following findings:
a. The applicant is not over the age of 18 years;
b. The required application fees have not been paid;
c. The applicant is ineligible to apply for a live adult entertainment business permit;
d. The business description does not comply with the definition of a live adult entertainment business;
e. The property owner does not consent to the operation of a live adult entertainment business on the site;
f. The site for the live adult entertainment business does not comply with the location requirements set forth in LMC 5.08.440;
g. The site plan and interior configuration of the proposed live adult entertainment business does not comply with the development regulations set forth in LMC 5.08.470;
h. The proposed live adult entertainment business described in the application does not comply with the operating regulations set forth in LMC 5.08.480;
i. The Police Chief provides a report finding:
i. The individual signing the application, or any partner or controlling members of a corporation for a business entity applicant, is or are prohibited from establishing, owning, or operating a live adult entertainment business as provided in subsection D of this section;
ii. The security program does not satisfy the requirements of the operating regulations set forth in LMC 5.08.480(R) for the proposed live adult entertainment business.
j. The application does not contain the information required by this article; or
k. The application contains a false, misleading, or fraudulent statement of material fact.
D. Prohibited. The following persons are prohibited from establishing, owning, or operating a live adult entertainment business:
1. Any person who, within the one-year period immediately preceding the date the application was filed, was convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code Section 290, or of any violation of any provision of Sections 313 through 318 or Section 647 of the California Penal Code;
2. Any person who, within the one-year period immediately preceding the date the application was filed, was convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Health and Safety Code Section 11590, or any violation of any provision of Sections 11350 through 11391 or Section 11550 of the California Health and Safety Code; or
3. Any person who is on probation, parole, under court supervision, or currently registered with a state or law enforcement agency, due to a conviction for conduct violating any provision of the statutes set forth in subsections (D)(1) and (2) of this section, or who has otherwise absconded or failed to successfully complete any term or condition of sentencing for a violation of any provision of said statutes. (Ord. 2065 § 1(A), 2018; Ord. 2045 §§ 1(A), 1(B), 2016; Ord. 2016 §§ 1(A), 1(B), 2015; Ord. 1885 § 4 (Exh. B), 2009)
5.08.470 Development regulations.
The building and site occupied by a live adult entertainment business shall be subject to the following development regulations:
A. Full View Manager’s Station. The interior of the live adult entertainment business shall have at least one permanent manager’s station which provides a vantage point from which all interior floor areas of the business accessible by patrons, including the entrance but not the interior of patron restrooms, can be observed in a direct line of sight.
B. Performance Area. A live adult entertainment business shall have only one performance area. The performance area shall consist of a single stage at least 18 inches above the level of the floor. The performance area shall be separated by a distance of at least six feet from the nearest area accessible by patrons. The six-foot separation shall be marked by a fixed railing or other fixed physical barrier at least 30 inches in height and designed to obstruct any physical contact between an entertainer and a patron.
C. Restricted Entertainer Facilities. Dressing room and restroom facilities shall be provided for the exclusive use of entertainers in a location that cannot be accessed or viewed by patrons.
D. Entertainer and Patron Separation. A pathway or entrance and exit to the performance area from the dressing room facilities shall be provided for the exclusive use of the entertainers. If a pathway crosses any area accessible by the public, it shall provide a minimum three-foot-wide walk aisle for entertainers, bounded by a wall, railing, fence, or other permanent barrier running the length of the walkway designed to prevent patrons from touching the entertainers. If a transparent separation is used, it shall be made from an unbreakable material or tempered glass.
E. No Enclosed Booths or Similar Enclosed Areas. Except for restrooms as provided in this article, no interior floor areas of live adult entertainment business accessible by patrons shall be enclosed. In addition, the business shall not have enclosed booths or similar enclosed areas. Likewise, areas designed for private use by patrons to the exclusion of other patrons, through the use of a partition, door, wall, curtain, or other material, are prohibited.
F. Exterior Sign. Exterior signage shall comply with the Livermore Development Code, building code, and development standards and design standards and guidelines applicable to the heavy industrial (I-3) zoning district.
G. Sound Attenuation. The building for the live adult entertainment business shall have sufficient sound absorbing insulation, or utilize other sound attenuation measures, to prevent noise generated inside the building from being audible in any other businesses occupying the same building as the live adult entertainment business, within any other building on the property where the live adult entertainment business is located, or on any adjacent property or the public right-of-way.
H. Openings and Entries. All building openings, entries, exits and windows for the live adult entertainment business shall be located, covered or screened in such a manner to ensure the performance area cannot be observed from outside the building. The building shall have a separate entrance and exit for the exclusive use of entertainers. Except in an emergency, entertainers shall not enter or exit the building through the patron entrances and exits. Entrance to the building for the live adult entertainment business from another business in the same building, or on the same property, is prohibited. In the event an accessory or ancillary use is conducted along with the live adult entertainment business, said use shall be physically separated from the live adult entertainment business to prohibit direct and indirect observation of its patron and performance areas.
I. Accessibility. The doors to the building for the live adult entertainment business shall not be locked during business hours.
J. Separate Restrooms. The building for the live adult entertainment business shall provide and maintain separate restrooms for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using a restroom designated for females, and female patrons and employees shall be prohibited from using a restroom designated for males. At no time shall a male and female occupy the same restroom at the same time. The restrooms shall not contain any television monitors or other motion picture or video projection, recording, or reproduction equipment. The restrooms shall also be free from any materials describing or depicting specified anatomical areas or specified sexual activities.
K. Lighting. A live adult entertainment business shall comply with the following lighting standards:
1. Exterior Lighting Level. All exterior areas for the live adult entertainment business, including the parking lot and areas for pedestrian and vehicle access to or from the business, shall be illuminated from dusk to two hours after the close of operation with a lighting system which provides an average maintained horizontal illumination of one foot-candle of light evenly distributed at ground level. The required lighting level is established in order to provide sufficient illumination of the parking areas, walkways, and outdoor areas serving the business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct.
2. Interior Lighting Level. All interior areas of the live adult entertainment business shall be illuminated at a minimum of five foot-candles, except during performances when the illumination may be reduced to 1.25 foot-candles.
L. Garbage and Garbage Receptacles. The exterior garbage receptacles for the live adult entertainment business shall be locked so that minors are not exposed to sexually oriented materials or sexually oriented merchandise. All items which may constitute biohazard waste shall be properly disposed of in approved biohazard refuse containers, readily available to both staff and patrons. These items shall be lawfully removed from the premises on a daily basis. The exterior areas for the live adult entertainment business shall be kept free of litter.
M. Parking. The adult live entertainment business shall comply with the parking regulations of the Livermore Development Code including but not limited to Chapter 4.04 LDC.
N. Visibility from Public Street. No opaque fencing or gate(s) shall be installed between the adjacent public streets and the building or the parking lot used for the live adult entertainment business. (Ord. 1901 § 3 (Exh. A § 10), 2010; Ord. 1885 § 4 (Exh. B), 2009)
5.08.480 Operating regulations.
A live adult entertainment business shall comply with the following operating regulations:
A. Prohibited Conduct. Every permittee, owner, operator, responsible managing employee, and security guard for the live adult entertainment business shall actively discourage and prevent any conduct that would violate any provision of Sections 313 through 318 or Section 647 or Section 290 of the California Penal Code, and any provision of Sections 11350 through 11391 or Section 11550 of the California Health and Safety Code. It shall be a breach of this regulation if a permittee, owner, operator, or responsible managing employee of the live adult entertainment business fails to call the police department for service when such person knew, or should have known, the prohibited conduct was occurring or the individuals engaging in the conduct did not respond to efforts to discourage the conduct.
B. Minors Prohibited. No person under the age of 18 years of age shall be allowed inside the building where the live adult entertainment business is operated.
C. Clothing. Except for entertainers while performing onstage in the performance area, all persons including entertainers, employees, owners, operators, and patrons in the areas of the live adult entertainment business open to patrons, shall wear at a minimum an opaque covering which covers their specified anatomical areas at all times in the areas open to patrons. The application of an opaque covering simulating the appearance of specified anatomical areas required to be covered shall not satisfy this regulation.
D. Performances. No entertainer shall perform at the live adult entertainment business except upon the stage in the performance area. No entertainer shall perform within six feet, measured horizontally, of any patron at the live adult entertainment business.
No permittee, owner, operator, or responsible managing employee of the live adult entertainment business shall permit any person, other than an entertainer while performing onstage in the performance area, to engage in any type of dance, performance, show, exhibition, or other activity characterized by an emphasis on the display of specified anatomical areas with less than fully opaque coverage, or the performance of physical human body activity that depicts or relates to specified sexual activities whether or not the anatomical areas are covered.
E. No Physical Touching. When present at a live adult entertainment business, no entertainer shall have physical contact with any patron and no patron shall have physical contact with an entertainer involving the touching of the specified anatomical areas, whether clothed or unclothed. This prohibition does not extend to incidental touching. Patrons shall be advised of the separation and no physical touching requirements by signs conspicuously displayed and placed on the barrier between patrons and entertainers. At a minimum, the sign shall be one foot by one and one-half feet with letters not less than one inch in size.
F. No Direct Payment. No entertainer shall solicit or accept any money directly from a patron.
G. No Alcohol. Alcohol shall not be allowed, sold, dispensed, consumed, or stored inside or outside of the live adult entertainment business.
H. No Employment. A permittee, owner, operator, or responsible managing employee of a live adult entertainment business is prohibited from allowing any person, subcontractor, or entertainer, to work or perform at the business, who:
1. Within the one-year period immediately preceding the date the application was filed, was convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code Section 290, or of any violation of any provision of Sections 313 through 318 or Section 647 of the California Penal Code;
2. Within the one-year period immediately preceding the date the application was filed, was convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Health and Safety Code Section 11590, or any violation of any provision of Sections 11350 through 11391 or Section 11550 of the California Health and Safety Code; or
3. Is on probation, parole, under court supervision, or currently registered with a state or law enforcement agency, due to a conviction for conduct violating any provision of the statutes set forth in subsections (H)(1) and (2) of this section, or who has otherwise absconded or failed to successfully complete any term or condition of sentencing for a violation of any provision of said statutes.
The permittee shall maintain a list of all employees and subcontractors working, and all entertainers performing, at the live adult entertainment business. The permittee shall also maintain a daily list of all employees and subcontrators working, and all entertainers performing, at the live adult entertainment business. The permittee shall make the lists of employees and entertainers available to the Police Chief, or his or her designee, upon request and without delay during normal business hours.
I. Registration of Employees and Entertainers. Each permittee shall register, and request a background investigation by the Livermore police department for, every person employed or subcontracted to work at the live adult entertainment business within five days of the person’s first day of work. Likewise, each permittee shall register, and request a background investigation by the Livermore police department for, every entertainer performing at the live adult entertainment business within five days of the entertainer’s first performance. The permittee shall pay the actual reasonable costs for the background investigation by the Livermore police department.
1. Background Information. When registering an employee or entertainer, a permittee shall provide the Police Chief with the following identifying information for the worker or entertainer for background investigation:
a. Full name and aliases;
b. Date of birth;
c. Social Security number;
d. One passport size photograph;
e. One copy of the driver’s license or identification card issued by a state department of motor vehicles; and
f. Fingerprints taken by the Livermore police department.
2. Investigation. The Police Chief shall investigate the information and materials provided.
a. The registration shall be accepted if the Police Chief, or his or her designee, determines that the employee, subcontractor, or entertainer:
i. Provided all the background information required by subsection (I)(1) of this section;
ii. Was not convicted of a violation of any statute identified as prohibited conduct in subsection A of this section within the one-year period prior to working or performing at the live adult entertainment business; and
iii. Is not on probation, parole, under court supervision, or registered, due to a conviction for conduct violating any provision of the statutes set forth in subsection A of this section, or who has otherwise absconded or failed to successfully complete any term or condition of sentencing for a violation of any provision of said statutes.
b. The registration shall be denied if the Police Chief, or his or her designee, determines the employee, subcontractor, or entertainer:
i. Did not provide all the background information required by subsection (I)(1) of this section;
ii. Was convicted of a violation of any statute identified as prohibited conduct in subsection A of this section within the one-year period prior to working or performing at the live adult entertainment business;
iii. Is on probation, parole, under court supervision, or registered, due to a conviction for conduct violating any provision of the statutes set forth in subsection A of this section, or who has otherwise absconded or failed to successfully complete any term or condition of sentencing for a violation of any provision of said statutes; or
iv. Provided information for investigation determined to be materially incorrect, false, or misleading.
3. Report and Confidentiality. After investigation, the Police Chief, or his or her designee, shall advise the permittee whether the registration for an employee, subcontractor, or entertainer was accepted. The background information shall be maintained by the police department as confidential information. Except as may be required by law, the Chief of Police, and his or her designee, shall not release any information received as part of the background investigation.
J. Hours of Operation. A live adult entertainment business shall be open for business only between the hours of 10:00 a.m. and 12:00 midnight on any particular day.
K. Responsible Managing Employee. The permittee, or an owner, operator, or responsible managing employee for the live adult entertainment business shall be present in the manager’s station at all times during all business hours to observe all areas accessible by all patrons, except the interior of patron restrooms, to ensure compliance with the operating regulations in this section.
L. Occupancy. The live adult entertainment business shall comply with the maximum occupancy load established by the fire marshal at all times.
M. Inspections. Permittee, and all owners, operators, employees and security of the live adult entertainment business shall permit representatives of the police department, fire department, planning department, building department and other city departments, and the county health department, to inspect the business for the purpose of ensuring compliance with the applicable development and operating regulations, and other applicable laws. Said inspections shall be conducted in a reasonable manner and shall be permitted of the interior areas at any time the business is open, and of the exterior areas at any time.
N. Amplified Sound. No loudspeakers or sound equipment shall be used in an adult entertainment establishment for the amplification of sound to a level discernible by the public beyond the walls of the building or portion thereof in which the adult entertainment establishment is conducted.
O. Interior Signs. Signs, advertisements, displays or other promotional materials depicting or describing specified anatomical areas or specified sexual activities shall not be shown or exhibited so as to be discernible by the public beyond the interior of the building.
P. Observation from Public Right-of-Way. No live adult entertainment business shall be operated in any manner that allows any portion of the interior of the business to be viewed from any public right-of-way, except for a five-foot area measured horizontally from an entrance when it is otherwise screened to prevent the observation of the interior of the building and does not have any interior signs identified in subsection O of this section. This provision shall apply to any display, decoration, sign, show window, or other opening. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times.
Q. Posting of California Penal Code Section 314. The following language from California Penal Code Section 314, or such other language as prepared by the City Attorney following an amendment to that statute from time to time by the state legislature, shall be posted inside the live adult entertainment business in plain view of all patrons entering the business:
California Penal Code § 314:
Every person who willfully and lewdly either:
(1) exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or
(2) procures, counsels, or assists any person so to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor.
Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under California Penal Code Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison.
R. Security Program. Live adult entertainment businesses shall establish and maintain a security program in order to preserve the public peace and safety. At a minimum, the program shall include elements that meet the following:
1. Prohibited Conduct. The program shall describe the activities to be implemented by the permittee to prevent the prohibited conduct identified in subsection A of this section.
2. Management. At all times it is open for business, a live adult entertainment business shall have a responsible managing employee on site who shall be at least 18 years of age. The permittee shall designate and identify for the Police Chief a responsible managing employee to receive all complaints and be responsible for preventing violations of the regulations set forth in this article from occurring at the live adult entertainment business.
3. Security Company. The program shall identify a security company to provide on-site security services for the live adult entertainment business that meets the following requirements:
a. The security company shall not be owned, operated, or controlled by the permittee, or any partner or member of a business entity that is the permittee, and any owner, operator, employee, or entertainer of the live adult entertainment business;
b. The security company shall have a valid license in accordance with the California Business and Professions Code and be bonded in the minimum sum of $1,000,000. The security company shall only assign security guards to the live adult entertainment business that are employed by the security company and that are not employed by, or affiliated in any capacity with, the permittee, or any partner or member of a business entity that is the permittee, or any owner, operator, employee, or entertainer of the live adult entertainment business;
c. Every security guard assigned to the live adult entertainment shall be registered as provided in subsection I of this section;
d. At least one security guard shall be on duty inside the live adult entertainment business at all times when it is open for business. The permittee shall also provide one additional security guard for every 25 people occupying the business in excess of the first 25 applicants;
e. The security guards shall be uniformed in a manner so as to be readily identifiable as a security guard at all times while on duty. The program shall describe the uniform;
f. In addition to interior security guard(s), at least one security guard shall patrol and monitor the exterior building, including all entrances and exits and the parking lot areas, during all business hours, with surveillance of the site continuing for two hours after closing; and
g. A security guard supplied by the security company is prohibited from acting as a door person, ticket seller, ticket taker, or sole occupant of the manager’s station while acting as a security guard.
4. Exterior Video Monitoring. A live adult entertainment business shall install, maintain in good working order, and provide to the security company for its use, a security system that visually records and monitors the exterior premises of the property including all entrances and exits and parking lot areas. All video recordings shall be retained by the security company for a minimum of 60 days and made available to the police department without delay upon request. A sign indicating compliance with this provision shall be posted on the premises. The sign shall not exceed two by three feet and shall at a minimum be one foot by one and one-half feet.
S. Private Commercial Use. No permittee, owner, or operator of a live adult entertainment business shall allow a live adult entertainment business to be rented, leased, or otherwise used for a private commercial use or for a private party, to the exclusion of all other patrons, unless the permittee gives prior written notice to the Police Chief and the private party agrees to comply with all development and operating regulations and conditions of approval imposed upon the live adult entertainment business, including the security program.
T. Changes. No permittee, owner, or operator of a live adult entertainment business shall make any changes to the interior floor plan, exterior site plan, or hours of operation described in the permit application unless approved in advance in writing by the City of Livermore.
U. Updated Background Information. Every permittee, owner, and operator of a live adult entertainment business shall be under a continuing obligation to provide the Police Chief current information regarding the information requested in LMC 5.08.450(A) and subsections (I)(1) and R of this section.
One year after a live adult entertainment business permit was issued, the permittee, owner, and operator of the live adult entertainment business shall submit to the Police Chief either:
1. An affidavit certifying under penalty of perjury that the information and materials required by LMC 5.08.450(A) and subsections (I)(1) and R of this section and contained in the application have not changed; or
2. Updated background materials required by LMC 5.08.450(A) and subsections (I)(1) and R of this section for re-investigation using the processes previously described herein.
A permittee, owner, or operator of a live adult entertainment business shall notify the Police Chief within 72 hours of any conviction of a permittee, owner, or operator of a violation of a statute identified in LMC 5.08.460(D), and conviction of a registered worker or entertainer of a violation of a statute identified in subsection A of this section. (Ord. 2065 § 1(A), 2018; Ord. 1885 § 4 (Exh. B), 2009)
5.08.490 Abandonment.
A. Failure to Inaugurate Use. Failure to initiate the live adult entertainment business use within 12 months from the date the permit is issued shall be deemed an abandonment of permit and the use. This time period shall be extended by the City, up to a maximum of 12 additional months, upon a showing that the permittee is actively pursuing development entitlements, building permits, and a certificate of occupancy for the live adult entertainment business.
B. Discontinued Use. Any discontinuance of a permitted live adult entertainment business for a period of more than 60 consecutive days shall be deemed an abandonment of the live adult entertainment business permit and use. This subsection shall not apply to a discontinuance resulting from the suspension of a live adult entertainment business permit as provided in LMC 5.08.500(E). (Ord. 2065 § 1(A), 2018; Ord. 1885 § 4 (Exh. B), 2009)
5.08.500 Revocation.
A. Grounds for Revocation. Any live adult entertainment business permit issued pursuant to the provisions of this article may be revoked upon the presentation of evidence showing any of the following:
1. That the building or structure in which the live adult entertainment business is located does not comply with the applicable building, fire, electrical, plumbing, health, and zoning requirements of the Livermore Municipal Code and the Livermore Development Code;
2. That the live adult entertainment business has been conducted in a manner inconsistent with the development or operating regulations contained in this article;
3. That the live adult entertainment business being conducted differs substantially from what was described in the permit application and required by LMC 5.08.450(J), (K), or (L), and the substantial differences are grounds as provided in LMC 5.08.460(C)(2) that would have justified denial of the permit if known when the application was considered;
4. That the permittee has failed to obtain or maintain all required City, county and state licenses and permits for the business;
5. That the permit is being used to conduct an activity different from that for which it was issued;
6. That the permit application contained a material misstatement of fact, a material misrepresentation, or was not completed truthfully;
7. An owner, operator, patron, employee, or entertainer of the adult business is found guilty of, or pleaded nolo contendere to, a violation of any statute identified as prohibited conduct in LMC 5.08.460(D) or 5.08.480(A), and that such offense or alleged offense occurred on the property where the live adult entertainment business is located. If the conduct is that of a patron, revocation must be based upon a finding that the owner, operator, or employee, of the adult business failed to take reasonable and appropriate measures to control the conduct of a patron or assisted the patron in the conduct for which he or she is convicted; or
8. That the permittee’s security program has not adequately deterred unlawful conduct by the employees, entertainers, or patrons of the live adult entertainment business, and the permittee has not updated its safety program to adequately address the conduct. This finding may be established by evidence showing the occurrence of conduct prohibited by LMC 5.08.480(A) resulting in convictions when the evidence shows a permittee, owner, operator, responsible managing employee, or security guard either knew or should have known that the conduct was occurring. However, this finding shall not be established based upon a conviction resulting from a call for service to the Livermore police department by a permittee, owner, operator, responsible managing employee, or security guard consistent with the permittee’s security plan.
B. Revocation Hearing. Upon request of the Police Chief, or his or her designee, the Planning Commission shall conduct a public hearing regarding the revocation of a live adult entertainment business permit. The request shall be submitted to the city clerk, and a copy of the request shall be delivered to the permittee. The request may be accompanied by a notice of immediate suspension as provided for in subsection E of this section.
1. Within 60 days of the request by the Police Chief, or his or her designee, the Planning Commission shall hold a public hearing to consider the request to revoke a live adult entertainment permit. Failure by the Planning Commission to hold a public hearing within that time period shall be deemed a denial of the request.
2. Written notice of hearing on the proposed permit revocation, together with written notification of the specific grounds of complaint against the permittee, shall be personally delivered or sent by certified mail to the permittee at least 30 days prior to the hearing. Notice of the hearing shall be made pursuant to California Government Code Sections 65091 and 65905.
3. The Planning Commission shall decide to revoke, to not revoke, or to not revoke but add conditions to, the live adult entertainment business permit. The Planning Commission’s decision shall be based upon written findings of one or more of the grounds set forth in subsection A of this section. The Planning Commission shall make its decision within 30 days of the public hearing, which decision shall be hand-delivered or sent by certified mail to the permittee, and mailed to all property and business owners within 300 feet of the live adult entertainment business.
C. Appeal Hearing. The Planning Commission’s decision may be appealed to the City Council by submitting a written notice of appeal to the city clerk within 14 days of the Planning Commission’s written decision. The timely filing of an appeal shall stay the Planning Commission’s decision, and preserve the status quo of the permit prior to that decision, until the City Council’s final decision on the appeal. The appeal shall be heard by the City Council at a public hearing.
1. Within 60 days of the date the appeal was received, the City Council shall hold a public hearing to consider an appeal of the Planning Commission’s decision on the request to revoke a live adult entertainment permit. Failure by the City Council to hold a public hearing within that time period shall be deemed to be an approval and adoption of the Planning Commission’s decision as the City Council’s decision, and a rejection of the appeal.
2. Written notice of the appeal hearing shall be personally delivered or sent by certified mail to the permittee, and the appellant if different from the permittee, at least 30 days prior to the hearing. Notice of the hearing shall be made pursuant to California Government Code Sections 65091 and 65905.
3. The City Council’s consideration of the appeal shall be a de novo hearing.
4. The City Council shall approve, conditionally approve, or reject the Planning Commission’s decision of the revocation of the live adult entertainment business permit. The City Council’s decision shall be based upon written findings of one or more of the grounds set forth in subsection A of this section. The City Council shall make its decision within 30 days of the public hearing, which decision shall be hand-delivered or sent by certified mail to the appellant and the permittee, and mailed to all property owners within 1,000 feet of the live adult entertainment business. Notice of the City Council’s decision and its findings shall include citation to the California Code of Civil Procedure Section 1094.8.
D. Conduct of Hearings. The public hearings contemplated by this section and held by the Planning Commission and the City Council shall include the following procedures:
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. A hearing shall not be bound by the formal rules of evidence. Any relevant evidence may be presented that is the sort upon which reasonable persons are accustomed to rely in the conduct of serious matters;
2. The City shall first present the grounds for revocation. The permittee shall then be afforded the opportunity, but is not required, to respond. The parties shall have the right to cross-examine a witness who provides evidence by live testimony. The hearing body shall also accept information from the public during the public comment portion of the hearing provided it satisfies the requirements in this section. The hearing body may direct questions to the City, permittee, or any other party related to the evidence presented by said party.
3. The time periods set forth in this section may be extended for a reasonable time based upon the mutual agreement of the City, permittee, and any appellant as the case may be. Any extension 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 permit revocations.
E. Notice of Immediate Suspension. The Police Chief may order the immediate suspension of a live adult entertainment business permit, and direct the cessation or the business and use, pending a revocation hearing before the Planning Commission, when a notice for a revocation hearing includes either of the following grounds:
1. Three or more patrons, employees, or entertainers of the adult business are found guilty of, or pleaded nolo contendere to, separate misdemeanor or felony offenses of any provision of the statutes set forth in LMC 5.08.480(A), that such offenses occurred on the property where the live adult entertainment business is located, and evidence shows a permittee, owner, operator, responsible managing employee, or security guard either knew or should have known that the conduct was occurring; or
2. The City’s building official has opined that the building or structure in which the adult business is conducted is not in compliance with the current approved and adopted edition of the various Uniform Building, Uniform Fire, Uniform Electrical and Uniform Plumbing Codes adopted by the City and is an immediate threat to the health, safety and welfare of the employees or patrons of the business or of the general public.
In an appeal of the Planning Commission decision upholding the suspension of a live adult entertainment permit, the permit shall remain suspended pending final decision by the City Council. (Ord. 2065 § 1(A), 2018; Ord. 1901 § 3 (Exh. A § 11), 2010; Ord. 1885 § 4 (Exh. B), 2009)
5.08.510 Judicial review.
A. Application. Any applicant whose application for a live adult entertainment business permit has been denied shall be afforded prompt judicial review of that decision.
B. Revocation and Suspension. Following the exhaustion of the administrative remedies set forth in this article, an appellant or permittee aggrieved by the City Council’s decision on an appeal of a Planning Commission after public hearing on the suspension or request to revoke a live adult entertainment permit shall be afforded prompt judicial review. The City shall make reasonable efforts to expedite such review and shall comply with the provisions of California Code of Civil Procedure Section 1094.8 and any subsequent or applicable statutes or rules of the courts of law of the state or nation which specify the prompt judicial review to be provided. (Ord. 2065 § 1(A), 2018; Ord. 1885 § 4 (Exh. B), 2009)