Chapter 8.44


8.44.010    Findings and purpose.

8.44.020    Definitions.

8.44.030    Permits and licenses.

8.44.040    Standards.

8.44.050    Impounding of newsracks.

8.44.060    Violation a nuisance.

8.44.070    Penalty.

8.44.010 Findings and purpose.

The City Council finds that certain types of adult-oriented businesses possess certain objectionable operational characteristics which, when concentrated, can have a deleterious effect upon adjacent areas. Locating the adult-oriented businesses covered by this chapter in the vicinity of facilities frequented by minors will increase the likelihood that minors will be exposed to materials intended for adults. In addition, many persons are offended by the public display of certain sexual material. Therefore, special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood and to an adverse effect on minors. (Ord. 1439 § 4 (Exh. A (part)), 2011)

8.44.020 Definitions.

Unless otherwise specifically provided, the terms used in this chapter shall have the following meanings:

A.    “Specified sexual activities” means:

1.    Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following depicted sexually oriented acts or conduct: analingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism or zooerasty;

2.    Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence;

3.    Use of human or animal masturbation, sodomy, oral copulation, coitus or ejaculation;

4.    Fondling or touching of nude human genitals, pubic region, buttocks or female breast;

5.    Masochism, erotic or sexually oriented torture, beating or the infliction of pain;

6.    Erotic or lewd touching, fondling or other contact with an animal by a human being;

7.    Human excretion, urination, menstruation, vaginal or anal irrigation;

8.    Any combination of the items in subsections (A)(1) through (7) of this section.

B.    “Specified anatomical areas” means:

1.    Less than completely and opaquely covered:

a.    Mature human genitals;

b.    Mature human buttock;

c.    Mature human female breast below a point immediately above the top of the areola;

2.    Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

C.    “Exposes to public view” means exposes to the view of persons outside the building in which such adult entertainment facility is located.

D.    “Adult-oriented businesses” include but are not limited to the following types of businesses:

1.    Adult Newsrack. Any coin-operated machine or device that dispenses material substantially devoted to the depiction of specified sexual activities or specified anatomical areas.

2.    Adult Bookstore. An establishment having as a substantial or significant portion of its stock in trade, books, magazines and other periodicals which are substantially devoted to the depiction of specified sexual activities or specified anatomical areas, or an establishment with a segment or section devoted to the sale or display of such material.

3.    Adult Motion Picture Theater. A building or portion thereof, or area, whether open or enclosed, used for presenting material in the form of motion picture film, videotape or other means which is substantially devoted to the depiction of specified sexual activities or specified anatomical areas for observation by persons therein.

4.    Adult Hotel or Motel. A hotel or motel wherein material is presented which is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

5.    Adult Motion Picture Arcade. Any place to which the public is permitted or invited wherein coin- or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas.

6.    Cabaret. A nightclub, theater or other establishment which features live performances by topless and/or bottomless dancers, “go-go” dancers, exotic dancers, strippers or similar entertainers, where such performances are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.

7.    Model Studio. Any business where, for any form of consideration or gratuity, figure models who display specified anatomical areas are provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by persons paying such consideration or gratuity.

8.    Sexual Encounter Center. Any business, agency or person who, for any form of consideration or gratuity, provides a place where two or more persons, not all members of the same family, may congregate, assemble or associate for the purpose of engaging in specified sexual activities or exposing specified anatomical areas.

9.    Other Sex Business. Any other business or establishment which offers its patrons goods, services or entertainment, or any combination thereof, characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, including such types of business known as adult dance studios, men’s social clubs and rap studios which meet such definition.

10.    Adult Entertainment Facility. An adult newsrack, adult bookstore, adult motion picture theater, adult hotel or motel, adult motion picture arcade, cabaret, massage establishment, model studio, sexual encounter center, or any other sex business, or any combination of two or more of such uses. (Ord. 1439 § 4 (Exh. A (part)), 2011)

8.44.030 Permits and licenses.

A.    An adult-oriented business must, prior to commencement or continuation of such business, apply for and receive from the Planning Commission or City Council, upon appeal, a conditional use permit as provided for in Chapter 18.30. Reasonable conditions may be imposed, such as limitation on hours of operation, exterior lighting, display materials, and other similar conditions, as may be necessary to protect the public health, safety and welfare.

B.    Subsequent to receipt of an approved conditional use permit, but prior to establishment of the adult-oriented business, the applicant shall apply for and receive a valid adult entertainment license, as provided for in Title 5. (Ord. 1439 § 4 (Exh. A (part)), 2011)

8.44.040 Standards.

Adult-oriented businesses must comply with the following development and operational standards in addition to standards specified in Section 18.23.040:

A.    Display. No adult-oriented business shall display or exhibit any material in a manner which exposes to the public view photographs or illustrations of specified sexual activities or naked adults in poses which emphasize or direct the viewer’s attention to the subject’s genitals. Adult newsracks are subject to this limitation.

B.    Security Program. An on-site security program shall be prepared and implemented as follows:

1.    Exterior Lighting. All off-street parking areas and building entries serving an adult business shall be illuminated during all hours of operation with a lighting system that provides a minimum maintained horizontal illumination of one foot-candle of light on the parking surface and/or walkway.

2.    Interior Lighting. All interior portions of the adult business, except those devoted to mini-motion or motion pictures, shall be illuminated during all hours of operation with a lighting system that provides a minimum maintained horizontal illumination of not less than two foot-candles of light on the floor surface.

3.    Security Guards. Security guards for adult businesses may be required if it is determined by the Sheriff’s Captain that their presence is necessary in order to prevent any unlawful conduct from occurring on the premises. (Ord. 1439 § 4 (Exh. A (part)), 2011)

8.44.050 Impounding of newsracks.

A.    The provisions of the San Carlos Municipal Code (Title 18) dealing with nonconforming uses shall not be applicable to adult newsracks, and on the effective date of the ordinance adopting the regulations set out in this chapter, all adult newsracks shall be required to comply with the provisions of this section.

B.    An adult newsrack found to be in violation of this section may be impounded by the Sheriff’s Captain after the following actions have occurred:

1.    A notice of violation has been affixed to the adult newsrack stating the section of this chapter which has been violated, and stating that the adult newsrack will be impounded if the violation is not abated within three days;

2. The violation has not been abated within three days of the posting of the notice of violation;

3.    The San Carlos Police Bureau has presented to any magistrate affidavits or other evidence sufficient to show a prima facie violation of this section;

4.    A magistrate has issued a written order permitting the impounding of the adult newsrack pursuant to this section.

C.    Whenever an adult newsrack is impounded, a complaint for violation of the section for which the adult newsrack was impounded must be filed within fourteen days of the impounding. If such action is not commenced within fourteen days, or if a final appealable decision in such action is rendered more than sixty days from filing of the action, the adult newsrack, together with its contents and all moneys, if any, shall be released to any person who provides sufficient proof of ownership of such adult newsrack, without requiring the payment of any impound fees; provided, however, that no adult newsrack shall be released because a final appealable decision was not rendered within sixty days of the filing of the action if the claimant of the adult newsrack is responsible for extending the judicial determination beyond the allowable time limit.

D.    The person who provides sufficient proof of ownership of such adult newsrack may have such adult newsrack, together with its contents and all moneys, if any, returned upon paying an impound fee of twenty-five dollars, or upon order of the magistrate, if any, who authorized the seizure of the newsrack, or pursuant to terms of subsection C of this section. Should there be a dismissal of the action charging a violation of this section, or an acquittal of such charges, the court ordering such dismissal or entering such acquittal may provide for the release of any newsrack and its contents, if any, impounded or the return of any impound fee paid for the release of an adult newsrack impounded pursuant to such charges. (Ord. 1439 § 4 (Exh. A (part)), 2011)

8.44.060 Violation a nuisance.

Every violation of the regulations contained in this chapter shall constitute and is hereby declared to be a public nuisance, which may be abated pursuant to the provisions of Chapter 731 of the Code of Civil Procedure of the State of California. The total cost of abatement shall be made a special assessment against the interest, if any, in the parcel of land upon which such nuisance is maintained, had or possessed by the person determined in such judicial proceeding to be responsible for the operation and maintenance of such nuisance. Upon a judicial determination in a civil action under Civil Code Section 3494 and Code of Civil Procedure Section 731 that a public nuisance did exist, such cost of abatement shall, by special ordinance, be made in lien against such property and a personal obligation against the person responsible for the operation and maintenance of such nuisance, and shall 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 the case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment. This remedy is in addition to any other remedy provided by law. (Ord. 1439 § 4 (Exh. A (part)), 2011)

8.44.070 Penalty.

Notwithstanding any other provision of this chapter, any person who violates this chapter shall be guilty of a misdemeanor and may be punished as follows:

A.    By imprisonment in the County Jail not to exceed six months;

B.    By forfeiture of the newsrack impounded pursuant to Section 8.44.050, provided the reasonable value of such newsrack does not exceed five hundred dollars;

C.    A fine not exceeding five hundred dollars;

D.    A combination of such imprisonment, forfeiture and/or fine; providing, however, that in no event shall any fine imposed, when added to the reasonable value of any impounded newsrack which is forfeited, exceed the sum of five hundred dollars. (Ord. 1439 § 4 (Exh. A (part)), 2011)