Thousand Oaks, California
Proposed Adult Business Ordinance
December, 2000

ORDINANCE NO.

- DRAFT 10/14/00 -

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF THOUSAND OAKS ADDING ARTICLE 41 TO CHAPTER 4 OF TITLE 9 OF THE THOUSAND OAKS MUNICIPAL CODE, IN ORDER TO REGULATE THE LOCATION AND OPERATION OF ADULT BUSINESSES.

WHEREAS, in developing this ordinance, the City Council has been mindful of legal principles relating to the regulation of adult oriented businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendments of the United States Constitution and the liberty of speech clause of the California Constitution, but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of adult oriented businesses. The City has considered the following court decisions: Young v. American Mini Theaters, Inc. , 427 U.S. 50 (1976) (Reh. denied 429 U.S. 873); Renton v. Playtime Theaters, 475 U.S. 41 (1986) (Reh. denied 475 U.S. 1132); FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); Barnes v. Glenn Theater, 501 U.S. 560 (1991); City of Erie v. Paps A.M. (2000) 529 U.S. ___ (2000 Daily Journal DAR 3255); Topanga Press, et al. v. City of Los Angeles, 989 F.2d 1524 (1993); Kev, Inc. v. Kitsap County , 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), pet. For cert. Filed (1999); Tily B. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); City of National City v. Wiener , 3 Cal.4th 832 (1993); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); City of Vallejo v. Adult Books, et al., 167 Cal.App.3d 1169 (1985); Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On, Inc. v. Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993) 10 F.3d 123, International Eateries v. Broward County (11th Cir. 1991) 941 F.2d 1157; Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074; Mitchell v. Comm. on Adult Entertainment, 10 F.3d 123, 131-139 (3rd Cir. 1993); Lady J. Lingerie, Inc. v. City of Jacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997) and Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995), and

WHEREAS, the City Council of the City of Thousand Oaks hereby finds that in adopting this ordinance, the City Council takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of adult oriented businesses in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977). The City Council finds that these studies are relevant to the problems foreseen for the City of Thousand Oaks and to be addressed in this ordinance designed to regulate the adverse secondary side effects of adult oriented businesses, and the council more specifically finds that these studies provide convincing evidence that:

(1) Both the proximity of adult oriented businesses to sensitive land uses and the concentration of adult oriented businesses at the same location will result in blight and deterioration of the areas where they locate.

(2) The proximity and concentration of adult oriented businesses at any location near or adjacent to residential, recreational, religious, educational uses can have adverse secondary effects on those recreational, religious, educational uses as well as on other local businesses and residences.

(3) There is substantial evidence that adult oriented businesses are linked to an increase in crime, which tends to accompany, concentrate around, and is aggravated by adult oriented businesses, including but not limited to, an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from these listed cities have established convincing evidence that adult oriented businesses, when not regulated as to permissible locations, often have a deleterious effect on nearby businesses and residential areas, causing, among other adverse secondary effects such as a decrease in property values.

(4) There are possible harmful effects on children and minors exposed to the effects of adult oriented businesses and such causes the deterioration of respect for family values and causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses, therefore, there is a need and desire for children and minors to be away from and avoid such businesses, and

WHEREAS, based on the foregoing and the recognition that adult oriented businesses have serious objectionable operational characteristics, particularly when more than one such business is concentrated at the same location, or when such a business is located in direct proximity to certain sensitive uses such as a public park, school, or church, thus, the City Council further finds that special regulations of adult oriented businesses are necessary to ensure that these described adverse secondary side effects will not occur, and

WHEREAS, the City Council, in adopting operational standards and locational requirements established by this ordinance, finds that these standards do not preclude reasonable alternative avenues of such communication. The City Council takes note of the increased amount of adult material on the Internet as one of those alternative avenues of communication. The City Council considered and relies on published decisions examining the proliferation of communications on the Internet. Reno v. American Civil Liberties Union (1997) 521 U.S. 844 (the principle channel through which many Americans now transmit and receive sexually explicit communication is the Internet); see also: Anheuser-Busch v. Schmoke, 101 F.3d 325, 329 (4th Cir. 1996)(rejecting First Amendment challenge to Baltimore ordinance restricting alcohol advertisements on billboards and acknowledging that the Internet is an available channel of communication); U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); and U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996)(cert denied 519 U.S. 820). The emergence of the Internet provides a virtually unlimited additional source of adult oriented sexual material available to persons without regard to geographic boundaries. An adult business no longer needs to be physically located within this City to be available to the community, and

WHEREAS, the City has performed an analysis of the qualifying sites under the ordinance and the Council finds those locational requirements provide a reasonable number sites within the City's active real estate market, thus, a reasonable alternative avenue of such communication will be provided, and

WHEREAS, the City Council finds the locational criteria alone does not adequately protect the health, safety, and general welfare of the citizens of the City of Thousand Oaks, and thus certain requirements with respect to the ownership and operation of adult oriented businesses that are needed in the public interest. In addition to the findings and studies conducted in other cities regarding increases in crime rates, decreases in property values and the blighting of areas in which such businesses are located, the City Council also takes legislative notice of the facts recited in the case of Kev, Inc. v. Kitsap County, 793 F.2d 1053 (1986), regarding how live adult entertainment results in secondary effects such as prostitution, drug dealing, and other law enforcement problems, and

WHEREAS, based upon the studies, reports, documents, testimony and judicial decisions in the public record for this ordinance, the City Council finds the following:

(1) Some dancers, models and entertainers, and other persons who publicly perform specified sexual activities or publicly display specified anatomical parts in adult oriented businesses (collectively referred to as 'performers') have been found to engage in sexual activities with patrons of the adult oriented Businesses on the site of the Adult-Oriented Business;

(2) Performers employed by Adult-Oriented Businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to observe and participate with the performers in live sex shows;

(3) Performers at Adult-Oriented Businesses have been found to engage in acts of prostitution with patrons of the establishment;

(4) Performers employed by Adult-Oriented Businesses frequently use stage names and other aliases, making it difficult for law enforcement personnel to property identify them or ascertain their true identities;

(5) Fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment, plus dimly-lit areas within adult oriented businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmission of disease and the engaging of unlawful sexual activity;

(6) As a result of the above, and the increase in the incidence of HIV/AIDS and Hepatitis B, which are both sexually transmitted diseases, or other sexually transmitted diseases, the City has a substantial interest in adopting regulations which will reduce, to the greatest extent possible, the possibility for the occurrence of prostitution and casual sex acts at Adult-Oriented Businesses.

(7) Without an certain distance of separation between performers /entertainers and the patrons there is a substantial likelihood that such persons will negotiate narcotics sales and/or transact sexual favors.

(8) Without an open to view to certain areas of the business premisses by management at all times, and providing adequate lighting of such areas, there is an ample opportunity for illegal conduct within adult oriented businesses, and such open viewing and lighting facilitates the inspection of the interior of the premises by law enforcement personnel, and

WHEREAS, the City Council desires to mitigate, minimize and control these adverse secondary effects from the operation of adult oriented businesses in the City, thereby protecting the health (such as limiting the spread of communicable and sexually transmitted diseases), the safety, and welfare of the citizens of Thousand Oaks, and also preserving the quality of life, property values and the character of surrounding neighborhoods (by deterring the spread of urban blight), and

WHEREAS, it is not the intent of the City Council, in enacting this ordinance, to condone or legitimize the distribution of obscene material, and the City recognizes that California state law prohibits the distribution of the obscene materials and certain sexual or lewd conduct and the display of harmful matter to minors, or to interfere with such state laws by entering into any preempted area of state regulation, particularly the operational conditions or restrictions imposed in this ordinance which may relate to sexual conduct or activities are only part of the City's regulatory permitting process and do not constitute criminal offenses. Notwithstanding any other provision of the Thousand Oaks Municipal Code, the City will not impose a criminal penalty for violations of the operational conditions or restrictions of this ordinance which are related to sexual conduct or activities, but will enforce such through civil court filings or the revocation of the offending permit, and

WHEREAS, while the City Council recognizes and desires to protect the free speech rights conferred by the United States Constitution and the California Constitution for adult oriented businesses, and with regard to the ban on nudity the City Council recognizes and desires to protect the right to communicate erotic messages, the City's purpose and intent is only to prevent, mitigate or reduce the impacts associated with the secondary effects, described in the aforementioned studies as associated with the development and operation of adult oriented businesses and public nudity, in a manner that ensures the continued and orderly development of property within the City, and

WHEREAS, on _________________ , 200__ this ordinance, the associated studies and reports were reviewed and considered by the City's Planning Commission at a properly noticed public hearing, which Commission then found the ordinance to be consistent with the City's General Plan and made recommendations to the City Council, and

WHEREAS, on _________________ , 200__ this ordinance, the same associated studies and reports, as well as all written comments, recommendations and oral testimony were considered by the City Council at a properly noticed public hearing, and the City Council approved the____________________ [Negative Dec.] and finds the ordinance to be consistent with the City's General Plan.

NOW, THEREFORE, the City Council of the City of Thousand Oaks does hereby ordain as follows:

Part 1

Section 9-4.203.7 is hereby added to Chapter 4 of Title 9 of the Thousand Oaks Municipal Code to read as follows:

Section 9-4.203.7. Adult-Oriented Businesses.

"Adult-Oriented Businesses" shall mean any one of the following businesses, operations, uses or activities, which definitions shall also incorporate the further definitions set forth in Article 41 ("Adult-Oriented Businesses") of Chapter 4 of this Title:

a. Adult Arcade. "Adult arcade" is a business establishment to which the public is permitted or invited, and image-producing devices, such as still or motion picture machines, projectors, videos, games, holograms, virtual reality devices, whether operated by mechanical, electronic or electrical means, are maintained to display images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing specified sexual activities or specified anatomical areas.

b. Adult Body Painting Studio. "Adult Body painting studio" which provides the service of applying paint or other substance, whether transparent or nontransparent, to or on the human body when such body is wholly or partially nude in terms of "specified anatomical areas".

b. Adult Bookstore. "Adult bookstore" is an establishment that has thirty (30) percent or more, in value or floor area, of its stock in trade in books, magazines, periodicals or other printed matter, or of photographs, films, motion pictures, video cassettes, slides, tapes, records or other form of visual or audio representations or instruments, adult entertainment merchandise, devices or paraphernalia which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities and/or specified anatomical areas.

c. Adult Cabaret. "Adult cabaret" is a nightclub, bar, restaurant, or similar business establishment which: (1) regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or (2) which regularly features persons who appear semi-nude; and/or (3) regularly shows films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions, which films, pictures or images are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

d. Adult Hotel/motel. "Adult hotel/motel" is a hotel or motel or similar business establishment offering public accommodations for any form of consideration which: (1) offers to all patrons closed-circuit television transmissions, films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions with thirty (30) percent or more of the number of such showings are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and (2) rents, leases, or lets any room for less than a six (6) hour period, or rents, leases, or lets any single room more than twice in a 24-hour period.

e. Adult Entertainment Merchandise. "Adult entertainment merchandise means paraphernalia such as, but not limited to dildos, vibrators, inflatable orafices, anatomical balloons, simulated genitalia and other similar devices that are designed or marketed primarily for the stimulation of human genital organs, sadomasochistic activity and/or sexual gratification. "Adult entertainment merchandise" shall not include birth control devices.

f. Adult Motion Picture Theater. "Adult motion picture theater" is a business establishment where, for any form of consideration, films, computer generated images, motion pictures, video cassettes, slides or similar photographic reproductions are shown, and thirty (30) percent or more of the number of said motion pictures or shown images are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

g. Adult Theater. "Adult theater" is a theater, concert hall, auditorium, or similar establishment which, for any form of consideration regularly features live performances of persons who appear semi-nude, or which are distinguished or characterized by an emphasis on the display of specified anatomical areas or specified sexual activities.

h. Bathhouse. "Bathhouse" means any business enterprise with its largest component of business being the providing of services of baths of all kinds, including all forms and methods of hydrotherapy, during which "specified anatomical areas" are displayed in mixed male and female groups or "specified sexual activities" occur. This definition does not include hydrotherapy practiced by, or under the supervision of a medical practitioner, chiropractor, acupuncturist or physical therapist, or beauty parlors/skin care specialists, or a similar establishments where baths or hydrotherapy are offered as incidental or accessory services.

i. Modeling Studio. "Modeling studio" is a business which provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who, for the purposes of sexual stimulation of patrons, display "specified anatomical areas" to be observed, sketched, photographed, painted, sculpted or otherwise depicted by persons paying such consideration. "Modeling studio" does not include schools maintained pursuant to standards set by the State Board of Education. "Modeling studio" further does not include a studio or similar facility owned, operated, or maintained by an individual artist or group of artists, and which does not provide, permit, or make available "specified sexual activities."

j. Outcall Service. "Outcall service" is any business or enterprise which provides an outcall service consisting of individuals leaving one premises upon request or by appointment to visit another premises for a period of time for the purpose of providing any performance or service during which time "specified anatomical areas" are displayed or "specified sexual activities" occur.

Part 2

Article 41 (entitled "Adult-Oriented Businesses") is hereby added to Chapter 4 of Title 9 of the Thousand Oaks Municipal Code to read as follows:

ARTICLE 41. ADULT-ORIENTED BUSINESSES.

Sec. 9-4.4101. Purpose.

It is the intent of this article to prevent community wide adverse economic impacts, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of Adult-Oriented Businesses in close proximity to each other or proximity to other incompatible uses such as schools for minors, churches, and residentially zoned property. The City Council finds that it has been demonstrated in various communities that the concentration of Adult-Oriented Businesses causes an increase in the number of transients in the area, and an increase in crime, and in addition to the effects described above can cause other businesses and residents to move elsewhere. The provisions of this Article shall have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative expression or material, including adult-oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to adult-oriented expressions or materials protected by the First Amendment, or to deny reasonable access to the distributors and exhibitors of adult-oriented entertainment to their intended markets.

It is also the intent of this article to combat prostitution, sexually transmitted diseases, drug dealing and the secondary effects of Adult Oriented Businesses.

However, it is not the City's intent condone or legitimize the distribution of obscene material. It is, therefore, the purpose of this article to establish reasonable and uniform regulations to prevent the concentration of Adult-Oriented Businesses or their close proximity to incompatible uses, while permitting the location of Adult-Oriented Businesses in certain areas of the City.

Sec. 9-4.4102. Definitions.

"Adult-Oriented Businesses" shall mean any of the businesses, operations, uses or activities described and defined in section 9-4.203.7 of this Chapter and the following definitions shall apply and be used for this Article:

a. Applicant. "Applicant" shall mean the person who is required to file an application for a permit under this Article, and must be one fo the following:

        • The sole individual business owner;
        • A managing partner of a partnership;
        • An officer of or an individual stockholder with a twenty (20) percent or greater interest in the corporate business entity

which is the owner of the Adult-Oriented Business.

b. Church. "Church" shall mean a fully enclosed permanent structure which on a regular basis is used primarily for public or private religious purposes, including prayer, worship, weddings, or special services.
c. Distinguished or Characterized by an Emphasis Upon. "Distinguished or characterized by an emphasis upon" shall mean and refer to the dominant or essential theme of the object described by such phrase, for instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon" the depiction or description of specified sexual activities or specified anatomical areas, the films so described are those whose dominant or predominant character and theme are the depiction of the enumerated sexual activities or anatomical areas.

e. Establish. To "establish" an Adult-Oriented Business shall mean and include any of the following:

(1) The opening or commencement of any Adult-Oriented Business as a new business;

(2) The conversion of an existing business or any use, whether or not an Adult-Oriented Business, to any Adult-Oriented Business;

(3) The addition of any new type of Adult-Oriented Businesses use or activity to any other existing Adult-Oriented Business; or

(4) The relocation of any such Adult-Oriented Business.

d. Figure model. "Figure model" means any person who, for pecuniary compensation, consideration, hire or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted.

g. Health Officer. The Health Officer of the City of or his or her duly authorized representative.

h. Operator. The "operator" of an Adult-Oriented Business is a person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of an Adult-Oriented Business or the conduct or activities occurring on the premises thereof.

i. Permittee. "Permittee" means the person to whom an Adult-Oriented Business Permit is issued.

k. Person. A "person" shall mean any individual, general or limited partnership, co-partnership, firm, association, joint stock company, corporation, or combination of those in whatever form or character.

l. Regularly Features . The term "regularly features" with respect to an adult theater or adult cabaret means a regular and substantial course of conduct.

m. School. A "school" is any child or day nursery facility, or an institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained pursuant to standards set by the State Board of Education. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college, or university.

n. Semi-Nude. Means a state of dress in which clothing covers no more than the specified anatomical areas, except for those other portions of the body that may be covered by supporting straps or devices for the clothing.

o. Specified Anatomical Areas. As used herein, "specified anatomical areas" shall mean and include any of the following: less than completely and opaquely covered human

(1) genitals or pubic region;

(2) buttocks; and

(3) female breast below a point immediately above the top of the areola

p. Specified Sexual Activities. As used herein, "specified sexual activities" shall mean and include any of the following, whether performed directly or indirectly through any clothing or other covering:

(1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast;

(2) Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;

(3) Masturbation, actual or simulated;

(4) Excretory functions as part of or in connection with any of the other activities described in subdivision (1) through (3) of this subsection.

o. State of Nudity. "State of nudity" means the showing of the specified anatomical areas of the body.

Sec. 9-4.4103. Industrial Zones Only; Minimum Proximity Requirements.

No Adult-Oriented Business shall be approved for, established or located in any zone in the City other than the industrial or manufacture M- zones, and each individual Adult-Oriented Business location in those zones shall be comply with the following:

a. No such business shall be approved, established or located within feet of any other Adult-Oriented Business.

b. No such business shall be approved, established or located within feet from any existing residential zone or use, park, church, school.

c. The distances set forth above shall be measured, without regard to intervening structures, as a radius from the primary entrance of the Adult-Oriented Business to the property lines of the property of any park, church, school, another Adult-Oriented Business, or any property zoned residential.

Sec. 9-4.4104. Permits Required; Not The Exclusive Entitlement Required.

It shall be unlawful for any person to engage in, conduct , or carry on, or to allow to be conducted or carried on, in or upon any land or premises in the City, the operation of an Adult-Oriented Business unless that person first obtains, and continues to maintain in full force and effect, a valid Adult-Oriented Business Permit issued from the City. It shall be unlawful for any person to enlarge, add to, change or modify the City approved permitted use or uses, as such are set forth in a valid Adult-Oriented Business Permit, without the issuance of a modification to that City permit. A City issued Adult-Oriented Business Permit is nontransferable, except in accordance with Section 9-4.41_____.

The fact that a person operating or engaging in an Adult-Oriented Business possesses any state or other City permit or license does not exempt that person from the requirement of obtaining a City Adult-Oriented Business Permit under this Article. In addition, the provisions of this article regulating Adult-Oriented Businesses are not intended to be the only or exclusive permit or entitlement required for any parking lot use, development, landscaping, building modification, out of door signage, construction or occupation associated with the use, and the compliance with this Article shall not excuse noncompliance with any other regulation pertaining to construction, development, or the operation of a business in the City. If those other City permits or entitlements have not been granted, the permit required under this Article shall be subject to the applicant receiving such other permits or entitlements and issued conditionally.

Sec. 9-4.4105. Application.

Every person who proposes to establish, maintain, operate or conduct an Adult-Oriented Business in the City shall first, as a qualified applicant under section 9-4.4102 (a), file an application with the Community Development Department, herein "Department" upon a form provided by the City and shall pay a filing fee, as established by resolution of the City Council, which fee shall not be refundable.

Sec. 9-4.4106. Content of Applications.

a. Contents. All applications shall include the address of the proposed location of the Adult-Oriented Business and the following information:

(1) If the applicant is an individual, the individual shall state his or her legal name, including any aliases, address, and submit satisfactory written proof that he or she is at least eighteen (18) years of age.

(2) If the applicant is a partnership, the partners shall state the partnership's complete name, address, the names of all partners, whether the partnership is general or limited, and attach a copy of the partnership agreement, if any.

(3) If the applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of California, the names and capacity of all officers and directors, the name of the registered corporate agent and the address of the registered office for service of process.

(4) The address to which City's notice of action on the application is to be mailed.

(5) The management structure for the proposed Adult-Oriented Business and the names of the operator, managers, and all then known employees, independent contractors, and other persons who will work at the Adult-Oriented Business.

(6) The name and address of any other Adult-Oriented Business the applicant, or any of its partners, officers or stockholders, owns or operates at any other location.

(7) Two passport-size color photographs, taken within six months prior to the date of the application, that clearly show the applicant's face. Any fees for the photographs shall be paid by the applicant.

b. Name of Business. Name of the Adult-Oriented Business to be operated at the proposed site. If the applicant intends to operate the Adult-Oriented Business under a name other than that of the applicant, the applicant shall file the fictitious name of the Adult-Oriented Business and show proof of registration of the fictitious name.

c. Nature of Operations, Site Property Owner. All applications shall include a description of all of the specific type(s) and nature of the Adult-Oriented Business's entertainment, operations, performances, services or activities and the proposed address where the Adult-Oriented Business will operate, plus the written consent of and name(s) and address(s) of the owner(s) and lessor(s) of the proposed site for the Adult-Oriented Business.

d. Security, Signs and Lighting. All applications shall include a description of all interior and exterior lighting fixtures (including illuminating powers), the scale of and a replica of all building or other exterior signs, and the security features and security personnel program for the contemplated operations.

e. Site and Facility Layout. All applications shall include a clear layout diagram showing the street entrances, all parking spaces, walkways, lighting fixtures, landscaping, signs, exterior doors and entrances, plus all interior areas, delineating the various rooms, restrooms, kitchens, windows, stages, patron seating, the projected maximum number of patrons, common walls with any adjoining uses, such that an entire configuration of the premises is provided, including a statement of the total floor area occupied by the Adult-Oriented Business. The layout diagram must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches. In addition, the applicant must provide a certificate and straight-line drawing, prepared within thirty (30) days prior to date of application, depicting:

1. The primary entrance and building and the portion thereof to be occupied by the Adult-Oriented Business;

2. The property lines of any other Adult-Oriented Business within of the primary entrance of the Adult-Oriented Business premises for which a Permit is requested; and

3. The property lines of any existing or City approved church, school site, park site, or residential zone within of the primary entrance of the Adult-Oriented Business.

f. Signature. The applicant shall provide his or her driver's license (or a California Identification number), social security number and then sign the application certifying all information thereon is true and correct.

Sec. 9-4.4108. Processing of Permits.

(a) Determination of Completeness. If the Department determines that the applicant has completed the application improperly, or otherwise deems the application to be incomplete, the Department shall, within ten (10) days of receipt of the original application, notify the applicant of such fact and, on request of the applicant, grant the applicant an extension of time to submit the missing information and a complete application. The time period for the City's granting or denying a City Adult-Oriented Business permit shall be stayed during the period in which the applicant is required to add missing information or to submit a completed application.

(b) Time Stamped and Final Action. Upon receipt of a completed application and payment of the application and Permit fees, the Department shall stamp the application as received and promptly investigate, evaluate and analyze the information so submitted to determine whether the applicant satisfies the standards of this Article and shall be issued an Adult-Oriented Business Permit. Within forty-five (45) days of receipt of the completed application, the Department shall complete the investigation, grant or deny the application in accordance with the provisions of this Section, and so notify the applicant. The Director of the Department, or his or her designee, may extend the time for the Department to act under this section on the application for a period not to exceed ten (10) more days in the event that due to the size or complexity of the application additional time is needed to process the application and/or complete a review of the information contained in the application.

(c) Nature Of Action; Granting of a Permit. The Department shall write or stamp "Granted" or "Denied" on the application, date and sign such notation. If permit is granted, the Department shall attach to the application, a City prepared Adult-Oriented Business Permit with a list of all conditions and standards for operation of that use. If applicant agrees to comply with all listed conditions and other requirements of this Article, the Permit shall become effective. While operating any City approved Adult-Oriented Business, the operator shall have the permit posted or easily available for immediate compliance verification.

(d) Failure to Act. If the Department neither grants nor denies the application within the time required by this Article, the applicant may begin operating the Adult-Oriented Business for which the Permit was sought if, after 20 days written Notice of Failure to Act delivered upon the City, the Department still fails to grant or deny the application. However, any such deemed operation due to the Department's failure to act, shall be in the proper City zone, meet the locational criteria and be subject to the operational compliance of the requirements of this Article and Title.

Sec. 9-4.4109. Permit Denial.

a. The Department shall deny the application if any of the following occurs:

(1.) The applicant, his or her employee, agent, partner, director, officer, shareholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for an Adult Business Permit.

(2) An applicant is under eighteen (18) years of age.

(3) The required application fee has not been paid.

(4) The proposed Adult-Oriented Business site does not comply with the zoning and/or individual site locational standards of sections 9-4.41__ (__) and (___).

(5) The site, facility or exterior layout does not meet City parking, traffic, sign or Adult-Oriented Business standards of ________________________.

(6) The building or structure does not meet City building or Fire Codes.

(7) The applicant has had a prior City Adult-Oriented Business permit revoked.

If the application is denied, the Department shall attach to the application a statement of the reasons for denial.

Sec. 9-4.4110. Transfer of Adult-Oriented Business Permits.

(a) Non-Transferable. Except as authorized by this section, a City Adult-Oriented Business permit is non-transferable. A permittee shall not operate an Adult-Oriented Business under the authority of an Adult-Oriented Business Permit at any place other than the address of the Adult-Oriented Business stated in the application for the Permit. Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and the Permit shall be deemed revoked.

(b) Transfer Approval. A permittee shall not transfer ownership in or control of an Adult-Oriented Business to another person unless and until the transferee obtains an amendment to the Permit from the Department stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the Department in accordance with sections 9-4.41___and 9-4.41__, accompanies the application with a transfer fee in an amount set by resolution of the City Council, and the Department determines in accordance with section 9-4.41___ that the transferee would be entitled to the issuance of an original Permit.

© No Transfer If Revocation Pending. No Permit may be transferred when the Department has notified the permittee that the Adult-Oriented Business Permit has been suspended or revoked, or City proceeding will be initiated to suspend or revoke that Permit.

Sec. 9-4.4113. Adult-Oriented Business Facility and Performance Standards.

The following listed requirements shall be deemed the minimal criteria for the City's issuance of, as well as ongoing conditions for the operation of, an Adult-Oriented Business Regulatory Permit, and the failure to comply with every such requirement shall be grounds for revocation of a permit issued pursuant to this Article.

(a) Fire Safety. Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated, designed and provided in accordance with the Fire Department and building regulations and standards adopted by the City.

(b) Screened View From Outside Areas. No Adult-Oriented Business shall be set up or operated in any manner that permits the observation of any semi-nude person, material, performances, or activities depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas" from any location outside the building of such an establishment. 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.

© Lighting. All off-street parking area and premise entries of the sexually-oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of _____ foot candle of light on the parking surface and/or walkways. The required lighting level is established in order to provide sufficient illumination of the parking areas, entrance area and walkways serving the sexually-oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct.

(d) Operating Hours. An Adult-Oriented Business shall be open for business only between the hours of _____ a.m. and midnight on any particular day.

(e) Notice Regarding Minors. The building entrance to an Adult-Oriented Business shall be clearly and legibly posted with a notice indicating that persons under eighteen (18) years of age are precluded from entering the premises. Said notice shall consist of letters no less than one inch in height. No person under the age of eighteen (18) years shall be permitted within the premises at any time.

(f) Areas Open To View. All indoor areas of the Adult-Oriented Business within which patrons are permitted, except restrooms, shall be open to view by the management at all times.

(g) Adult Arcades. Any adult-oriented business which is also an "adult arcade", shall comply with the following provisions:

(1) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be direct line of sight from the manager's station.

(2) The view area specified in subsection (5) shall remain unobstructed by any doors, walls, merchandise, display racks, or other materials at all times. No patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted.

(3) No viewing room may be occupied by more than one person at any one time.

(4) The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes between any two such rooms such as would allow viewing from one booth into another or such as to allow physical contact of any kind between the occupants of any two such booths or rooms.

(5) Customers, patrons or visitors shall not be allowed to stand idly by in the vicinity of any such video booths, or from remaining in the common area of such business, other than the restrooms, who are not actively engaged in shopping for or reviewing the products available on display for purchaser viewing. Signs prohibiting loitering shall be posted in prominent places in and near the video booths.

(6) The floors, seats, walls and other interior portions of all video booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen or saliva in any such booths shall be evidence of improper maintenance and inadequate sanitary controls; repeated instances of such conditions may justify suspension or revocation of the owner and operator's license to conduct the adult-oriented establishment.

(h) Illumination. All areas of the Adult-Oriented Business shall be illuminated at a minimum of the following foot-candles, minimally maintained and evenly distributed at floor or ground level:

Area Foot-Candles

Adult Bookstores 20

Adult Theaters and Adult Cabarets 5 (except during performances,

at which times lighting shall be at

least 1.25 foot Candles)

Adult Arcades 10

Adult Motels/Hotels 20 (in public areas)

Modeling studios 20

(i) Restrooms. The Adult-Oriented Business shall provide and maintain separate restroom facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the rest room(s) for females, and female patrons and employees shall be prohibited from using the rest room(s) for males, except to carry out duties of repair, maintenance and cleaning of the rest room facilities. The restrooms shall be free from any Adult Material. Restrooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph shall not apply to an Adult-Oriented Business which deals exclusively with sale or rental of Adult Material which is not used or consumed on the premises, such as an Adult Bookstore or Adult Video Store, and which does not provide restroom facilities to its patrons or the general public.

(j) Live Entertainment, Stage, Seating Areas. The following additional requirements shall pertain to Adult-Oriented Businesses providing live entertainment depicting Specified Anatomical Areas or involving Specified Sexual Activities, except where such matters and businesses have been entirely regulated by the Alcoholic Beverage Control Commission:

(1) No person shall perform live entertainment for patrons of an Adult-Oriented Business except upon a stage at least eighteen (18) inches above the level of the floor which is separated by a distance of at least ten (10) feet from the nearest area occupied by patrons, and no patron shall be permitted within ten (10) feet of the stage while the stage is occupied by an entertainer. "Entertainer" shall mean any person who is an employee or independent contractor of the Adult-Oriented Business, or any person who, with or without any compensation or other form of consideration, performs live entertainment or an act involving any Specified Sexual Activity for patrons of an Adult-Oriented Business.

(2) The Adult-Oriented Business shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use.

(3) The Adult-Oriented Business shall provide an entrance/exit for entertainers which is separate from the entrance/exit used by patrons.

(4) The Adult-Oriented Business shall provide access for entertainers between the stage and the dressing rooms which is completely separated from the patrons. If such separate access is not physically feasible, the Adult-Oriented Business shall provide a minimum three (3) foot wide walk aisle for entertainers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the entertainers capable of (and which actually results in) preventing any physical contact between patrons and entertainers.

(5) No entertainer, either before, during or after performances, shall have physical contact with any patron and no patron shall have physical contact with any entertainer either before, during or after performances by such entertainer. This subsection shall only apply to physical contact on the premises of the Adult-Oriented Business.

(6) Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between entertainers and patrons required by this subsection.

(7) No patron shall directly pay or give any gratuity to any entertainer and no entertainer shall solicit any pay or gratuity from any patron.

(8) No owner or other person with managerial control over an Adult-Oriented Business (as that term is defined herein) shall permit any person on the premises of the Adult-Oriented Business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque coverage, and/or the female breast with less than a fully opaque coverage over any part of the areola.

(k) Security Steps. Adult-Oriented Businesses shall employ an adequate number of trained security guards in order to maintain the public peace and safety, based upon the following standards:

(1) Adult-Oriented Businesses featuring live entertainment shall provide at least one (1) security guard at all times while the business is open. If the occupancy limit of the premises is greater than thirty-five (35) persons, an additional security guard shall be on duty.

(2) Security guards for other Adult-Oriented Businesses may be required if it is determined by the City's Police Department that their presence is necessary in order to prevent any of the conduct listed in section 9-4.41_____(_) from occurring on the premises.

(3) Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. Security guards shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of state law. No security guard required pursuant to this subsection shall act as a door person, ticket seller, ticket taker, admittance person, or sole occupant of the manager's station while acting as a security guard.

(l) Inspections. City Police officers, Department code enforcement officers, health Officers , fire personnel, or other personnel of any City enforcement department shall be admitted to all permitted Adult-Oriented Businesses establishments without an admission charge, for the purposes of inspection, at any time during the operating hours of such an operation for the purpose of insuring compliance with the law and the development and performance standards applicable to Adult-Oriented Businesses. An operator of an Adult-Oriented Business, or any agent or employee thereof, is in violation of the provisions of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business.

(m) Noise. For any Adult-Oriented Businesses with entertainment there shall be construction sound attenuation devices or walls and any reasonable necessary operational steps shall be implemented for purposes of noise mitigation measures. No person in charge of a Adult-Oriented Businesses shall allow the noise level of the attendees, music, or entertainment to reach a level which may be heard by outside of the building.

(n) Trash. Applicant and operator shall have a daily exterior inspection program and be responsible for immediate cleanup any trash, bottles or any litter left on or within a Department defined radius of the premises. Any City observed trash, bottles or litter shall be cleaned up within a 48 hours of any notice from the Department.

(p) Minors At Premises. No permittee, operator, or other person in charge of an Adult-Oriented Business shall employ any person who is not at least eighteen (18) years of age. In addition, no permittee, operator or other person in charge of any Adult-Oriented Business shall permit any person who is not at least eighteen (18) years of age to enter or remain within the Adult-Oriented Business.

(p) Other conditions. Such other reasonable non-content and operational conditions as adopt a City Council resolution may be imposed by the City as is necessary for the safe, quiet, compatible, and nuisance free operation of the use or establishment.

Sec. 9-4.4114. Term of Permit.

An Adult-Oriented Business Permit granted under this Article shall be for valid for a period of 24 months from the date of issuance and, upon the filing of a renewal application and the payment of the City's renewal fee, the Adult-Oriented Business Permit renewal application shall be reviewed and renewed by the Department for a like period of time, provided the facility, use, owner and operator are in full compliance with the criteria and requirements of this Article.

Sec. 9-4.4115. Registration of new employees.

(a) Registration. As a further condition of approval of every Adult Oriented Business permit issued pursuant to this chapter, every owner or operator shall register every employee with the Police Department of the City within five (5) business days of the commencement of the employee's period of employment at the Adult Oriented Business. Failure to register a new employee within five (5) days of the commencement of employment, or to maintain a current register of the names of all employees shall be deemed a violation of the conditions of the permit and may be considered grounds for suspension or revocation of the permit.

(b) Contents. Each employee shall be required to provide two (2) recent color passport-quality photographs and, at the discretion of the Police Chief, shall allow himself or herself to be fingerprinted by the Police Department for purposes of identification. In addition, each new employee shall provide the following information on a form provided by the Police Department:

(1) Name, current resident address, telephone number.

(2) Date of birth.

(3) Social Security number.

(4) Height, weight, color of eyes and hair.

(5) Stage name (if applicable) and other aliases used within the previous two years.

(6) Driver's license or California Identification number.

(7) Two passport-size color photographs, taken within six months prior to the date of the application, that clearly show the applicant's face. Any fees for the photographs shall be paid by the applicant.

(c) Keeping of Information. The information provided for purposes of this section shall be maintained by the Police Department as confidential information, and shall not be disclosed as public records unless pursuant to an order issued by a court of competent jurisdiction.

(d) Maintain Current Register. Each operator of an Adult Oriented Business shall maintain a current register of the names of all employees currently employed by the Adult Oriented Business, and shall disclose and provided such registration for inspection by any Police Officer for purposes of determining compliance with the requirements of this section.

Sec. 9-4.417. Abandonment.

Any discontinuance or abandonment of the use of any premise, lot or structure for an Adult-Oriented Business for a period of more than 30 days shall result in a loss of the issued permit for the Adult-Oriented Business or the loss of all status as legal nonconforming use.

Sec. 9-4.4118. Suspension or Revocation of Adult-Oriented Business Permits.

(a) Determination, Notice. An Adult-Oriented Business Permit may be suspended or revoked in accordance with the procedures of this Section. On determining that grounds for a permit revocation exist, the Director of the Community Development Department, or his or her designee, shall furnish written notice of the proposed suspension or revocation to the permit holder. Such notice shall set forth the time and place of a suspension or revocation hearing before the Planning Commission, and the Department's recommended action, the ground or grounds for the proposing of such suspension or revocation, the pertinent City Code sections involved, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the permit holder or owner, or shall be delivered to the permit holder or owner personally, at least ten (10) days prior to the hearing date.

(b) Conduct of Hearings. Hearings shall be conducted in accordance with procedures established by the City, but at a minimum shall include the following:

  • All parties involved shall have a right and a reasonable opportunity to offer testimony, present documents and other tangible evidence bearing on the issues;
  • The Department shall present its recommendation and the grounds for such, then the permit holder may present its argument and proof, then the public testimony, final questions of the Commission, and then the permit holder shall have an opportunity to rebut any testimony presented by the public, the Department, Police or City staff;
  • All parties may be represented by legal counsel;
  • Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs; and
  • Closing of the hearing, deliberation and Commission action.

Any hearing under this section may be continued for a reasonable time (not to exceed 30 days) for the convenience of a party or a witness.

(b) Commission Actions. After closing of the hearing held in accordance with the provisions of this section, the Planning Commission may deny the request to revoke or suspend and issue a warning, it may suspend the permit for a period not to exceed six months, it may revoke the Permit, or it may take other appropriate remedial action, including the imposition of additional conditions. If it decides to suspend or revoke, it must find that one or more of the following occurred from the acts or omissions of the permit holder, operator, or owner, or an employee, agent, partner, director, stockholder, or manager of an Adult-Oriented Business:

(1) That one those persons has knowingly made a false, misleading or fraudulent statement of material fact in the application for the Permit, or in any report or record required to be filed with the City.

(2) That one those persons has knowingly allowed or permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the Adult-Oriented Business:

(i) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation.

(ii) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur.

(iii) Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code.

(iv) The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Sections 315, 316, or 318 or Subdivision b of Section 647 of the California Penal Code.

(v) Any act constituting a violation of provisions in the California Penal Code relating to obscene matter or distribution of harmful matter to minors, including but not limited to Sections 311 through 313.4.

(vi) Any failure or omission in the timely complying with or meeting the requirements of any condition of the Permit.

(vii) Any the conduct prohibited by a condition of the Permit or which is a violation of this Article.

(viii) Failure to abide by any directive lawfully and previously imposed by an appropriate City official.

Sec. 9-4.4120. Appeal to City Council; Prompt Judicial Review Under CCP Sec. 1094.8. of Decision to Suspend or Revoke.

After denial of an application for an Adult-Oriented Business Permit, or after denial of an application for a renewal of an Adult-Oriented Business Permit, or upon the Commission's suspension or revocation of a Permit, the applicant or the holder of the Adult-Oriented Business Permit may seek review of such Department non-issuance or Commission action by the filing with the Department of a written appeal to City Council on the appropriate City form, the appellant setting forth the reasons for the appeal, and paying the appeal fee as set by council resolution. Upon the completion of a formal appeal, the Department shall contact the City Clerk and have the appeal hearing set before the City Council within thirty (30) days from the date of its filing. The appeal hearing shall be a de novo hearing of the matter and conducted in the same manner as required under section 9-4.4118, with the City Council being substituted for the Planning Commission in that section.

If the denial, suspension or revocation is affirmed on review, the applicant, Permittee may seek prompt judicial review of such administrative action pursuant to California Code of Civil Procedure Section 1094.8. The City shall make all reasonable efforts to expedite judicial review. If a permit is revoked for certain reasons, and provided that the adult business is otherwise in compliance with the requirements of the Municipal Code, the business may continue to operate pending final City Council determination.

Part 3

Severability

(Uncodified)

If any section, subsection, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that this Ordinance, and each section, subsection, sentence, clause and phrase hereof, would have been prepared, proposed, adopted, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

* * * * *

PASSED AND ADOPTED

Dennis Gillette, Mayor

City of Thousand Oaks, California

ATTEST:

Nancy A. Dillon, City Clerk

APPROVED AS TO FORM:

Mark G. Sellers, City Attorney


APPROVED AS TO ADMINISTRATION:

MaryJane V. Lazz, Interim City Manager

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