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Home My WebLink About2012/11/01 Item 01CITY COUNCIL AGENDA STATEMENT „,,,~;, cmr of CHULA VISTA NOVEMBER 1, 2012, Item 1 ITEM TITLE: A. AN URGENCY ORDINANCE OF THE CITY OF CHULA VISTA AMENDING THE CHULA VISTA MUNICIPAL CODE BY AMENDING CHAPTER 9.13 REGULATING THE LICENSING AND OPERATIONS STANDARD FOR SEXUALLY ORIENTED BUSINESSES AND REPEALING CHAPTER 9.22 (4/STHS VOTE) B. AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING THE CHULA VISTA MUNICIPAL CODE BY AMENDING CHAPTER 9.13 REGULATING THE LICENSING AND OPERATIONS STANDARD FOR SEXUALLY ORIENTED BUSINESSES AND REPEALING CHAPTER 9.22 SUBMITTED BY: CITY ATTORNEY'S OFFIC$~ REVIEWED BY: GARY HALBERT, ASSISTANT CITY MANAGER/DIRECTOR OF DEVELOPMENT SERVICES DEPARTMENT DAVID BEJARANO, CHIEF OF POLICE 4/STHS VOTE YES ~ NO SUMMARY "The existing provisions of the Chula Vista Municipal Code (CVMC), specifically Chapter 9.13, pertaining to the licensing and regulation of adult businesses are in need of updating and should be enhanced to reduce and/or preclude undesirable secondary effects including, but not limited to, increased crime, blighting influences in the community, decrease in property values, and the spread of sexually transmitted diseases. Accordingly, staff and its legal consultant have recently completed an exhaustive review of the legal issues relating to the regulation of adult businesses, particularly as these proposed regulations protect public health, safety, and welfare. As a result of this research and review process, the proposed ordinance provides the requisite balance between the City's interests in protecting the public safety, health, and welfare and the 1-1 November 1, 2012, Iteml Page 2 of 8 constitutional protection afforded to adult businesses. Moreover, the proposed ordinance provides the evidentiary and factual foundation required to reasonably conclude that adult business can create potentially serious and deleterious secondary effects in the Chula Vista community, and therefore, the City's adult business regulations should be updated. ENVIRONMENTAL REVIEW Staff has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the proposed activity is not a "Project" as defined under section 15378 of the State CEQA Guidelines because the adoption of an urgency ordinance, will not result in a physical change to the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the proposed activity is not subject to CEQA. Notwithstanding the forgoing, staff has further determined that there is also no possibility that the proposed activity will have a significant effect on the environment; therefore, pursuant to section 15061(b)(3) of the State CEQA Guidelines the activity is exempt from the provisions of CEQA. RECOMMENDATION Take separate actions to approve both versions of the ordinances presented amending Chula Vista Municipal Code section 9.13 to update and enhance the regulation procedures regarding the licensing and operational standards of sexually oriented businesses based on the findings set forth therein Version A of the ordinance should be adopted as an urgency ordinance based on the special findings of urgency set forth therein. If approved by 4/5th vote of the City Council, this ordinance will go into effect immediately. Version B of the ordinance should be approved on "first reading." Except for the omission of findings of urgency, this ordinance is identical to version A. Version B will be brought back to the City Council for second reading and adoption at the November 6, 2012 council meeting. BOARDS/COMMISSION RECOMMENDATION Not Applicable. DISCUSSION The City of Chula Vista initially adopted Live Entertainment Licensing and Regulations in Chapter 9.13 of the Chula Vista Municipal Code in 1980. Since then, there have been minor modifications to the Chapter. The proposed ordinance is a comprehensive revision of the City's existing regulations for sexually oriented uses/adult uses and addresses both licensing/permitting provisions and operating standards for adult facilities . (Copies of the Ordinance are attached as Attachmentsl and 2.) The purpose and intent of the proposed amendments to the Chula Vista Municipal Code are to: (1) mitigate and reduce the judicially recognized potential adverse secondary effects of adult businesses including, but not limited to, crime, the prevention of blight in neighborhoods, and the increased spread of sexually transmitted diseases; 1-2 November 1, 2012, Iteml Page 3 of 8 (2) protect quality of life and neighborhoods in the City, the City's retail and commercial trade, and local property values, and minimize the potential for nuisances related to the operation of adult businesses; (3) protect the peace, welfare and privacy of persons who own, operate and/or patronize adult businesses; and (4) minimize the potential for nuisance related to the operation of adult businesses. To achieve these desired goals, the proposed ordinance establishes reasonable time, place, and manner restrictions on the adult businesses in the City of Chula Vista. A. Legal Basis/Constitutional Constraints. - Adult businesses, such as adult bookstores, adult videos stores, and adult cabarets, engage in activities recognized as protected speech under the First Amendment of the United States Constitution. For example, nude dancing has been found by the U.S. Supreme Court to be on the outer margins of protected activity. (See Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)). As providers of protected First Amendment speech, the courts have uniformly ruled that these types of adult businesses cannot be prohibited. Adult businesses can, however, be regulated. Traditional constitutional analysis divides the range of speech regulations into two main categories: (1) content based; and (2) content neutral (i.e., regulations not based on content but rather imposing reasonable time, place, and manner restrictions). Content-based regulation is specifically aimed at the speech's content, and any such content based regulation carries with it a very high burden to find such legally adequate mandating that the public entity show,it has a compelling interest in its regulation. In contrast, content neutral regulations are aimed at protecting governmental interests unrelated to the content of speech, such as traffic or noise regulation applied to all types of commercial uses for purposes of furthering the public health, safety and welfare. The United States Supreme Court in the City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), addressing Renton, Washington's adult use ordinance, held that whether a time, place, and manner regulation is content neutral is to be determined by looking at the regulation's purposes, i.e. is the purpose the reduction of secondary effects versus the suppression of the offensive or unpopular speech. A city may adopt regulations to curb the deleterious secondary effects of adult uses, but suppression of the speech is impermissible. A content neutral time, place, and manner regulation must serve a substantial government interest and be reasonably tailored to preclude secondary effects. Courts have also recognized that a city's interest in protecting the quality of life and finding creative solutions to address adult uses deleterious secondary effects must be accorded the highest respect. City of Los Angeles v. Alameda Books, 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). The proposed ordinance is content neutral under the Renton standard because it is designed to further the City's purposes and goals in limiting and preventing the 1-3 November 1, 2012, Iteml Page 4 of 8 deleterious secondary effects associated with adult businesses. The extensive findings set forth in the proposed ordinance fully support the regulations therein. In SDJ. Inc. v. City of Houston, 837 F.2d 1274 (5th Cir. 1988), cert. denied 480 U,S. (1989), the court remarked on the importance of findings: "Insisting on findings reduces the risk that a purported effort to regulate effect is a mask for regulation of content. That is, evidence of a legitimate purpose is supported by proof that secondary effects actually exist and are the result of the business subject to the regulation...." As a result of the First Amendment protection afforded to various adult businesses (adult bookstores, video stores and live entertainment), conditions cannot simply be imposed upon an adult facility in an effort to preclude the facility's operation. Any condition(s) must be predicated on the reduction of the secondary effects. These adverse secondary effects include: urban blight; increased crime; decreased property values; diminished retail trade; prostitution; the spread of sexually transmitted diseases; and illegal drug transactions. It is important to note that the purpose of the proposed ordinances is not to prohibit or otherwise regulate child pornography or obscenity because such material is not now, nor has it ever been, granted constitutional protection. Furthermore, local regulation of obscene material has been preempted by state and federal law. Rather, the intent of the proposed ordinance is to address the adverse secondary effects that are caused by adult businesses. Case law also recognizes that a community can plan ahead and put in place operational standards prior to the entry of an adult facility into the community. The United States Supreme Court held that it is not necessary for a city to conduct its own studies regarding the presence of negative secondary side effects associated with adult businesses. City of Los Angeles v. Alafneda Books, 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). The Court specifically determined that cities may reasonably rely on the experiences and studies of other cities in concluding that adult businesses create the aforementioned negative secondary side effects. The supporting materials provided as exhibits to this staff report, as well as input from City staff, the city attorney, and the city's special counsel, contributed to crafting the recommended operational requirements found in the proposed ordinance which we believe are a constitutional, narrowly tailored means of controlling potential secondary effects of adult use businesses. On file at the City Clerk's office is the set of the exhibits in support of this ordinance. (A list of those exhibits is attached to this staff report as Attachment 3.) Included among the exhibits are the cases referred to in the ordinance, the studies of other cities relating to the secondary effects of adult uses, and other supporting documentation. We have also included a number of materials relating to testimony from current and former dancers and other employees of adult use businesses or persons affiliated with the adult business industry, which support the need for the recommended operational requirements. A summary of a portion of these studies is attached to this staff report as Attachment 4. In addition, Chula Vista Chief of Police David Bejarano will provide testimony on the secondary impacts related to sexually oriented businesses. Chief Bejarano, during his tenure with the San Diego Police Department, served a detective investigating unlawful activities in sexually oriented businesses, served as the Vice Commander and was responsible for detectives conducting such investigations, and, as Chief of Police, was responsible for the licensing of sexually 1-4 November 1, 2012, Iteml Page 5 of 8 oriented businesses within the City of San Diego. (A copy of his curriculum vitae ("CV") is attached to this staff report as Attachment 5.) B. Permitting and Operational Standards. The City has put forth a comprehensive adult use ordinance that is state of the art. The operational requirements contained in the ordinances are designed to reduce/eliminate the negative secondary effects from adult businesses. The requirements include: (1) Restricting hours of operation; (2) Lighting requirements (interior and exterior); (3) Precluding direct touching between patrons and performers of live adult entertainment establishments; (4) Requiring that performers and patrons maintain a six (6) foot distance separation; (5) Precluding direct tipping and/or payment for live adult entertainment performers; (6) Requiring a fixed stage with a barrier or rail; (7) Separate entrances; (8) Separate restrooms; (9) No doors on arcade booths; and (10) Unobstructed view of the interior of the premises of an adult use business. Each of these operational criteria is designed to address concerns regarding prostitution, drug transactions and illicit sexual activity. Also, included is the requirement that Sexually Oriented Business performers be licensed, as detailed in Chapter 9.13.0140 through 9.13.230. In reviewing the City's existing regulations in light of the extensive existing case law, it is warranted that operating provisions should be added or enhanced to reduce and/or preclude secondary effects. It is important to note that experiences in other cities have demonstrated that potential adverse secondary effects generated by adult use businesses cannot be adequately addressed by locational restrictions alone. See Exhibits. For example, the cities of La Habra, Anaheim and Arcadia have extensive experience with adult facilities focused on totally nude "juice bars." Nude "juice bars" are adult facilities that feature totally nude dancers without the provision of alcoholic beverages. These types of facilities are not regulated by the Alcoholic Beverage Control Department, which further mandates the need for the City's operational standards. Nude juice bars require carefully tailored regulations to reduce the adverse secondary effects that such facilities bring to a community. At many totally nude clubs, the establishments also offer "off-stage" performances commonly known as "lap," "couch" or "table" dancers. This type of conduct typically consists of direct physical touching and/or the provision of "specified sexual activities" or the simulation of "specified sexual activities" for a fee after the dancers conclude a main stage performance. At clubs in La Habra and Anaheim, it has been typical for performers wearing only g-string bikinis to straddle the laps of male patrons, writhing and rubbing their bikini-covered breasts on patrons' chests while rubbing and fondling the patrons' genitals over their clothing. As more fully discussed below, the proposed ordinance 1-5 November 1, 2012, Iteml Page 6 of 8 precludes this type of extreme "off-stage" activity, along with its companion noted secondary effects of prostitution and/or illegal drug transactions. Arcade Booths/Individual Viewing Areas. The interior configuration of adult businesses, specifically those that include video viewing booths, is an important area for regulation. This is because in many communities, these booths have become a common site for illicit sexual activity. Ordinances requiring the interiors of video viewing booths to be visible from the room in which they are located are routinely upheld. Similarly ordinances that require booths to be sufficiently lighted are also constitutionally sound. As arcade booths and/or closed individual viewing areas are a magnet for illicit sex, the use of either is conducive to the spread of communicable diseases found to be of danger to persons frequenting such premises and to the public health. The public health of all people in the City must be protected by the establishment of standards for such premises to eliminate the possibility of infection of contagious diseases. Of specific danger is the sexually transmitted disease AIDS currently found to be irreversible and fatal. The incidence of this disease is found to occur in discernable population groups, and the risk factors for obtaining or spreading the disease are associated with high-risk sexual conduct with multiple partners. The commercial premises, or parts thereof, which place persons at risk of infection from this disease, due to their design and use for high-risk sexual conduct, are necessarily subject to regulation and standards for the prevention of the spread of this disease and for the protection of public health, safety and welfare. The City Council is asked to take legislative notice of the facts recited in Berg v. Health and Hosp. Corp. of Marion County, Ind., 865 F.2d. 797, 799 (7t" Cir. 1989), allowing the removal of doors on booths as a valid response to a legitimate concern about multiple sexual encounters that facilitated the spread of AIDS. The City Council is also asked to take notice of statistics provided by the County of San Diego Health and Human Services Agency, the County of Orange Health Care Agency. These various studies are found in the Exhibits on File in Support of this Ordinance. . The City Council also is asked to take legislative notice of the findings set forth in the 1986 Attorney General's Report on Porpography in support of the ordinances including, but not limited to, its recommendation that local governments ban certain features of peep show booth that facilitate sexual encounters. See Exhibits, Vols. III and IV. 2. Live Entertainment. Adult businesses providing live entertainment have been subject to regulations uniquely tailored to reduce/eliminate their companion secondary effects. The experiences of other cities have demonstrated that establishments allowing touching and physical contact between performers and patrons have high instances of illicit sexual activity or narcotics transactions occurring on the premises. In an effort to reduce these secondary effects, cities have passed, and courts have uniformly upheld, ordinances imposing performer- patron distance restrictions and no touching provisions. (See Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 374.) 1-6 November 1, 2012, Iteml Page 7 of 8 As to "couch," "lap," table or similar one on one private "dances," courts have held that those types of so called lap dances are not expressive activity and a city may regulate this conduct. (see Tily B., Inc. v. City of Newport Beach, 69 Cal. App 4t" 1 (1998); Colacurcio v. City of Kent, 163 F. 3d 545 (91h Cir. 1998), cert. denied 529 U.S. 1053 (2000); Kev, Inc. v. Kitsap County, 793 F. 2d 1053 (9t" Cir. 1986). The proposed ordinance prohibits this type of off-stage performances by requiring all adult live performances be confined to a fixed main state and requiring that patrons and performers be six (6) feet apart. The operating standards found in the proposed ordinance for live entertainment have been approved by case law and most recently validated in the 2005 published 9t" Circuit case of Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F. 3d 875, cert. denied 126 S.Ct. 374. C. Permitting Provisions. The proposed ordinance provides a permitting procedure for the issuance of a sexually oriented business regulatory permit. The proposed ordinance's permitting criteria are specifically defined and set out a specific time frame for action, hearing, decision, etc. All of these precise criteria and fast track time limits are mandated by the body of constitutional law in this area. All sexually oriented businesses, live sexually oriented entertainers, and managers at sexually oriented businesses will have to comply with the specific requirements set forth in Chapter 9.13. Adopting the proposed ordinance provides comprehensive operational standards along with permitting provisions for adult businesses for the City and- serves to thoroughly and aggressively regulate the harmful secondary effects of these businesses. The proposed ordinance strikes the requisite balance between the City's interests in protecting the public safety, health, and welfare and the constitutional protection afforded adult businesses. Finally, given the harmful secondary effects identified herein and in the supporting exhibits, there is a need for this ordinance to be adopted as an urgency measure, within the meaning of Chapter 311 of the Charter for the City of Chula Vista to preserve the public peace, health, safety, and general, welfare. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently, the 500-foot rule found in the California Code of Regulations section 18704.2(a)(1) is not applicable to this decision. Staff is not independently aware, nor has staff been informed by any City Councilmembers, of any other fact that may constitute a basis for a decision make conflict of interest in this matter. CURRENT YEAR AND ON-GOING FISCAL IMPACT The current and on-going fiscal impacts cannot be determined at this time because it is not yet clear how many applicants there will be or the extent of any enforcement activity that will be required under this ordinance. 1-7 November 1, 2012, Iteml Page 8 of 8 ATTACHMENTS 1. Urgency Ordinance 2. Ordinance 3. List of Exhibits (The Exhibits are available in the City Clerk's Office) 4. Summary of studies 5. Chula Vista Police Chief David Bejarano CV Prepared by: Glen R. Googins, City Attorney, City Attorney's Office 1-8 ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA AMENDING THE CHULA VISTA MUNICIPAL CODE BY AMENDING CHAPTER 9.13 REGULATING THE LICENSING AND OPERATIONAL STANDARDS FOR SEXUALLY ORIENTED BUSINESSES AND REPEALING CHAPTER 9.22 WHEREAS, the City of Chula Vista has certain permitting provisions found in Chapter 9.13 for sexually oriented businesses that are in need of updating and refinement. The City Council takes legislative notice of the full complement of supporting evidence as to the secondary effects of sexually oriented businesses. Accordingly, the City makes the following findings and enactments. NOW THEREFORE, the City Council of the City of Chula Vista does ordain as follows: SECTION 1. FINDINGS. A. The City Council finds that it is necessary and appropriate to amend Chapter 9.13 to add, refine and update the provisions providing licensing and operational standards for adult businesses operating with the City of Chula Vista ("the City"). The public health, safety and welfare of the City and its residents require the immediate enactment of this Urgency Ordinance and such operating standards for sexually oriented businesses in order to: (1) mitigate and reduce the judicially recognized potential adverse secondary effects of sexually oriented businesses, including but not limited to crime, the prevention of blight in neighborhoods and the increased threat of the spread of sexually transmitted diseases; (2) protect the quality of life and neighborhoods in the City, the City's retail and commercial trade, and local property values, and minimize the potential for nuisances related to the operation of sexually oriented businesses; and (3) protect the peace, welfare and privacy of persons who own, operate and/or patronize sexually oriented businesses. B. The City Council finds that the revisions to the City's Municipal Code implemented by this Urgency Ordinance are immediately necessary as an emergency measure in order to respond to recent developments within the regulation of adult uses and case law and in order to preserve the City from the potential adverse secondary effects of sexually oriented businesses, including crime, the protection of the City's retail trade, maintenance of property values, protecting and preserving the quality of the City's neighborhoods and the City's commercial districts, the protection of the City's quality of life, and the increased threat of the spread of sexually transmitted diseases and the protection of the peace, welfare and privacy of persons who patronize adult businesses based on the referenced studies and the findings set forth in Paragraphs A-AA. Specifically, the revisions and amendments to Municipal Code Chapter 9.13 included in this Urgency Ordinance are essential and immediately necessary to ensure the orderly implementation of adult use regulations within the City by amending and refining various permitting and operating provisions in the Municipal Code to improve the City's regulation of sexually oriented businesses, and thereby ensure the immediate preservation of the public peace, health, safety and general welfare in the City of Chula Vista. ~ 19 ATTACHMENT 1 C. On November 1, 2012, the City Council held a public meeting during which it considered the adoption of this Urgency Ordinance pursuant to California Government Code § 36937 and the Chula Vista Charter § 311. Both California Government Code § 36937 and Chula Vista Charter Section 311 allow the adoption of such urgency ordinances to take effect immediately to ensure the immediate preservation of the public peace, health, safety and general welfare in the City of Chula Vista. D. The City Council, in adopting this ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Sexually-Oriented Businesses in other cities: Austin, Texas (1986); Indianapolis, Indiana (1984); Garden Grove, California (1991); Seattle, Washington (1989); Houston, Texas (1997); Phoenix, Arizona (1979); Tucson, Arizona (1990); Chattanooga, Tennessee (2003); Los Angeles, California (1977); Whittier, California (1978); Spokane, Washington (2001); St. Cloud, Minnesota (1994); Littleton, Colorado (2004); Oklahoma City, Oklahoma (1986); Dallas, Texas (1997 and 2007); Ft. Worth, Texas (2004); Kennedale, Texas (2005); Greensboro, North Carolina (2003); Amarillo, Texas (1977); Cleveland, Ohio (1977); Newport News, Virginia (1996); Jackson County, Missouri (2008); Louisville, Kentucky (2004); New York, New York Times Square (1994); Beaumont Texas (1982); the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota); Dallas, Texas (2007); "Rural Hotspots: The Case of Adult Businesses," 19 Criminal Justice Policy Review 153 (2008); "Correlates of Current Transactional Sex among a Sample of Female Exotic Dancers in Baltimore, MD," Journal of Urban Health (2011); "Stripclubs According to Strippers: Exposing Workplace Sexual Violence," by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota; A Methodological Critique of the Linz-Paul Report: A Report to the San Diego City Attorney's Office (2003); Sexually Oriented Businesses: An Insider's View -Testimony of David Sherman before the Michigan House Committee on Ethics and Constitutional Law (2000); Closin' Time: Effective Regulation of Adult Businesses' Hours of Operation, by Scott Bergthold (2000); Summaries of Key Reports Concerning the Negative Secondary Effects of Sexually Oriented Businesses, by Louis Comus III (2001); Peep Show Establishments, Police Activity, Public Place and Time: A Study of Secondary Effects in San Diego, California, by Daniel Linz et al. (2006); and Do Peep-shows "Cause" Crime? A response to Linz, Paul, and Yao, by Richard McCleary et al. (2006), The City Council finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of sexually oriented businesses, and more specifically finds that these studies provide convincing evidence that: 1. Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, traffic, noise, and sexual assault and exploitation. 2. The studies from other cities establish by convincing evidence that sexually oriented businesses that are not regulated with operating standards often have a deleterious effect on nearby businesses and residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values. Regulations for 2 1-10 sexually oriented businesses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than waiting for problems to be created. E. In developing this ordinance, the City Council is mindful of legal principles relating to regulation of sexually oriented businesses, and the City Council does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of sexually oriented businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of sexually oriented businesses including, but not limited to: City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Erie v. Pap's A.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue, 409 U.S. 109 (1972); N. Y. State Liquor Authority v. Bellanca, 452 U.S. 714 (1981); Sewell v. Georgia, 435 U.S. 982 (1978); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); City of Dallas v. Stanglin, 490 U.S. 19 (1989); and 1. The City Council has also considered and takes legislative notice of decisions of the Ninth Circuit Court of Appeals cases addressing sexually oriented businesses including but not limited to: Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031 (9th Cir. 2011); Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th Cir. 2007); Tollis, Inc. v. County of San Diego, 505 F.3d 935 (9th Cir. 2007); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 274; World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Dream Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004); Talk of the Town v. Department of Finance and Business Services, 343 F.3d 1063 (9th Cir. 2003); Center For Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Deja Vu-Everett-Federal Way, Inc. v. City of Federal Way, 46 Fed.Appx. 409 (9th Cir. 2002); Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001); Isbell v. City of San Diego, 258 F.3d 1108 (9th Cir. 2001); Isbell v. City of San Diego, 450 F.Supp.2d 1143 (S.D. Cal. 2006); Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097 (9th Cir. 1998) (Baby Tam I); Baby Tam & Co. v. Las Vegas, 199 F.3d 1111 (9th Cir. 2000) (Baby Tam II); Baby Tam & Co. v. Las Vegas, 247 F.3d 1003 (9th Cir. 2001) (Baby Tam III); Diamond v. City of Taft, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531 U.S. 1072 (2001); L.J. Concepts, Inc. v. City of Phoenix, 215 F.3d 1333 (9th Cir. 2000); Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000), cert. denied 121 S.Ct. 1189 (2001); Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000), cert. denied 531 U.S. 1104 (2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir: 1998), cert. denied 529 U.S. 1053 (2000); North v. City of Gilroy, 78 F.3d 594 (9th Cir. 1996); Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir. 1996); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied 511 U.S. 1030 (1994); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); and Lydo Ent. v. Las Vegas, 745 F.2d 1211 (9th Cir. 1984). 3 1-11 2. The City Council has also considered and takes legislative notice of decisions from other Circuit Court of Appeals addressing sexually oriented businesses including the following: Imaginary Images, Inc. v. Evans, 612 F.3d 736 (4th Cir. 2010); Doctor John's, Inc. v. City of Roy, 465 F.3d 1150 (10th Cir. 2006): LLEH, Inc. v. Wichita County, 289 F.3d 358 (5th Cir. 2002); Ocello v. Koster, 354 S.W.3d 187 (Mo. 2011); 84 Video/Newsstand, Inc. v. Sartini, 455 Fed.Appx. 541 (6th Cir. Sept. 7, 2011); Flanigan's Enters., Inc. v. Fulton County, 596 F.3d 1265 (1 lth Cir. 2010); Entm't Prods., Inc. v. Shelby County, 588 F.3d 372 (6th Cir. 2009); Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); SOB, Inc. v. County of Benton, 317 F.3d 856 (8th Cir. 2003); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999); Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); Tee & Bee v. City of West Allis, 936 F.Supp. 1479 (E.D. Wis. 1996); National Amusements, Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995); Peek-a- Boo Lounge v. Manatee County, 630 F.3d 1346 (1 lth Cir. 2011); Dayto-na Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007); H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006); G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003); Richland Bookmart, Inc. v. Knox County, 555 F.3d 512 (6th Cir. 2009); TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705 (5th Cir. Tex. 1994); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jacksonville, 973 F.2d 1255 (5th Cir. 1992), cert. denied 507 U.S. 1030 (1993); International Eateries v. Broward County, 941 F.2d 1157 (11th Cir. 1991), cert. denied 503 U.S. 920 (1992); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986); N. W. Enterprises, Inc. v. City of Houston, 372 F.3d 333 (5th Cir. 2004); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); and N. W. Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5th Cir. 2003). 3. The City Council has also considered and takes legislative notice of decisions of State of California courts addressing sexually oriented businesses including: Madain v. City of Stanton, 185 Ca1.App.4th 1277 (2010); Krontz v. City of San Diego, 136 Ca1.App.4th 1126 (2006); Lacy Street Hospitality Service, Inc. v. City of Los Angeles, 125 Ca1.App.4th 526 (2004); Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board and Renee Vicary, Real Party in Interest, 99 Ca1.App.4th 880 (2002); Tily B., Inc. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); Sundance Saloon, Inc. v. City of San Diego, 213 Ca1.App.3d 807 (1989); 7978 Corporation v. Pitches, 41 Cal.App.3d 42.(1974); Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Ca1.App.3d 980 (1985); E. WA. P., Inc. v. City of Los Angeles, 56 Ca1.App.4th 310 (1997); City of Vallejo v. Adult Books, 167 Ca1.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); City of National City v. Wiener, 3 Ca1.4th 832 (1992), cert. denied 510 U.S. 824; and People v. Superior Court (Lucero), 49 Ca1.3d 14 (1989). F. Each of the foregoing negative secondary effects constitutes a harm which the City has a substantial government interest iri preventing and/or abating. This substantial government interest in preventing secondary effects, which is the City's rationale for this Chapter, exists independent of any comparative analysis between sexually oriented and non- sexually oriented businesses. Additionally, the City's interest in regulating sexually oriented 4 1-12 businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the City. The City finds that the cases and documentation relied on in this Chapter are reasonably believed to be relevant to said secondary effects. G. The City Council also finds that locational criteria alone do not adequately protect the health, safety, and general welfare of the citizens of Chula Vista, and thus certain requirements with respect to the ownership, operation and licensing of sexually oriented businesses are in the public interest. In addition to the findings and studies conducted in other cities regarding increases in crime rates, decreases in property values and the blighting of areas in which such businesses are located, the City Council takes legislative notice of the following: (1) the facts recited in the case of Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), regarding how live adult entertainment results in secondary effects such as prostitution, drug dealing, and other law enforcement problems, and (2) the facts and holding of the case of Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 374, wherein the Ninth Circuit recognized that off stage performances by performers who also perform nude and/or semi-nude at an sexually oriented establishment can cause the same secondary effects as other activities documented in studies and case law regarding sexually oriented establishments, even if the performer is clothed and the establishment does not serve alcohol. H. Relying on the following, the City finds that sexually oriented businesses in its community may lead to detrimental secondary effects including prostitution and engagement in unlawful sexual activity. The City bases this conclusion on the experiences of Chula Vista, as well as that of other California communities, such as La Habra and Arcadia, which the City has a reasonable basis to believe reflect the experiences of its own community, including numerous police reports and affidavits from those communities, and judicial decisions in the public record: 1. Evidence indicates that some dancers, models, entertainers, performers, and other persons who publicly perform specified sexual activities or publicly display specified anatomical areas in sexually oriented businesses (collectively referred to as "performers") have been found to engage in sexual activities with patrons of sexually oriented businesses on the site of the sexually oriented business. 2. Evidence has demonstrated that performers employed by sexually 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. Evidence indicates that performers at sexually oriented businesses have been found to engage in acts of prostitution with patrons of the establishment. 4. Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as locations for engaging in unlawful sexual activity. 5. As a result of the above, and the increase in incidents of HIV, AIDS, and hepatitis B, which are sexually transmitted or blood borne diseases, the City has a substantial interest in adopting regulations that will reduce the possibility for the occurrence of prostitution 5 1-13 and unlawful sex acts at sexually oriented businesses in order to protect the health, safety, and well-being of its citizens. The City finds this is relevant to Chula Vista and the need to regulate the secondary effects of sexually oriented businesses within the community. 6. The public health, safety, welfare, and morals of all persons in the City must be protected by the establishment of standards to diminish the possibility of infection of contagious diseases. I. The City Council is cognizant of the specific danger from the sexually transmitted disease AIDS, which is currently irreversible and fatal. The City Council takes legislative notice of the HIV/AIDS Epidemiology Report 2010 ("HIV/AIDS Epidemiology Report") prepared by the Public Health Services division of the County of San Diego Health and Human Services Agency. According to the HIV/AIDS Epidemiology Report, 14,228 AIDS cases were reported throughout San Diego County since 1981 through December 2009, 328 of which were reported in 2009. The HIV/AIDS Epidemiology Report also indicates that San Diego County has the third highest number of AIDS cases in the state of California. The City also takes legislative notice of the County of Orange Communicable Disease Summary 2000, County of Orange Health Care Agency, issued July 2002 ("Communicable Disease Summary") and the HIV/AIDS Surveillance Statistics, 2003 also issued by the County of Orange Health Care Agency in October 2004 ("HIV/AIDS Surveillance Study"). The HIV/AIDS Surveillance Study reports that 6,429 cases of AIDS were reported in Orange County between 1981 and 2003. Of those, 237 were reported in 2003 and 162 were also diagnosed in 2003. The HIV/AIDS Surveillance Study further indicates that according to the latest available data (as of December 2001), Orange County has reported more AIDS cases than 25 U.S. states and ranks 28th in number of AIDS cases reported among the 101 metropolitan areas recognized by the Centers for Disease Control and Prevention with 500,000 or more population. J. The City is also concerned with preventing the spread of other sexually transmitted diseases such as syphilis, gonorrhea and chlamydia and hepatitis B. The Communicable Disease Summary further indicates that between 1996 and 2000, 1,053 cases of syphilis were reported, 345 cases of acute hepatitis B were reported, and 18,948 cases of chlamydia were reported in Orange County. The City also takes legislative notice of the STD Fact Sheet of sexually transmitted diseases reported in San Diego County between 1994 and 2008, prepared by the County of San Diego Health and Human Services Agency ("STD Fact Sheet"). According to the STD Fact Sheet, 1,710 cases of syphilis were reported throughout the San Diego County between 1994 and 2008, 334 of which were reported in 2008. With respect to gonorrhea, 31,223 cases of gonorrhea were reported between 1994 and 2008, 2,018 of which were reported in 2008. The number of cases of chlamydia reported within San Diego County dramatically exceeds the number of reported cases of syphilis and gonorrhea: 137,096 cases were reported between 1994 and 2008, 14,074 of which were reported in 2008. It should also be noted that according to the AIDS Status Report, numerous studies have shown that sexually transmitted diseases such as syphilis, gonorrhea and chlamydia facilitate the transmission of HIV. The City Council has a reasonable basis to conclude that the experiences of San Diego and Orange Counties as to these HIV/AIDS and STD or blood borne diseases are relevant to the experiences of Chula Vista, which is located in the midst of this large urban area. 6 1-~4 K. In considering appropriate operational regulations for sexually oriented businesses, the City Council finds that: 1. Enclosed or concealed booths and dimly lit areas within sexually oriented businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmission of disease. Requiring all indoor areas to be open to view by management at all times and adequate lighting to be provided reduces the opportunity for, and therefore the incidence of illegal conduct within sexually oriented businesses, and further facilitates the inspection of the interior of the premises thereof by law enforcement personnel. 2. Preventing the exchange of money between performers and patrons also reduces the likelihood of drug and sex transactions occurring in sexually oriented businesses. 3. Requiring separations between performers and patrons precludes them from being within earshot to communicate and thereby reduces the likelihood that such persons will negotiate narcotics sales and/or transact sexual favors within the sexually oriented business. L. The City Council recognizes and relies on the findings set forth in the 1986 Attorney General's Report on Pornography in support of this ordinance including, but not limited to, its recommendations that local governments ban certain features of video booths that facilitate carnal sexual encounters. A copy of the Attorney General's Report on Pornography is available for public review at the city clerk's office. 1. With respect to booths, these findings include the following: The inside walls of the booth are typically covered with graffiti and messages, usually of a sexual nature and consisting of telephone numbers, names, requests and offers for sex acts, anatomical descriptions, and sketches. Some booths also contain a chart used as an appointment schedule that is utilized to schedule appointments for sex acts that take place in that particular booth. In some instances, this arrangement has been used for the solicitation of prostitutes. Many of these booths are equipped with a hole in the side wall between the booths to allow patrons to engage in anonymous sex including both oral and anal sex acts. Inside the booths, the floors and walls are often wet and sticky with liquid or viscous substances, including semen, urine, feces, used prophylactics, gels, saliva, or alcoholic beverages. The City concludes, based in part on the description of the illicit sexual activity as noted within the Attorney General's Report, that the presence of closed doors and/or any obstruction of the video booth area is likely to lead to the above described secondary effects. 2. Likewise, the City Council recognizes and relies on the findings set forth in the May 1990 study conducted by the City of Tucson in support of this ordinance including, but not limited to, the following findings with respect to booths: Holes were present in the walls of adjoining booths within sexually oriented entertainment establishments. These holes were used by male patrons to facilitate sex acts with the occupant of the neighboring booth. The Council reasonably believes that the Tucson experience, along with the Attorney General's Report, is relevant to the problems associated with sexually oriented facilities in Chula Vista. 3. The City Council finds that requiring that booths in sexually oriented establishments be configured in such a manner so that there is an unobstructed view from the 7 1-15 manager's station(s) and prohibiting closed, concealed, or unobstructed booths that are occupied by no more than one person at a time reduces the secondary effects associated with closed booths. Specifically, the provisions pertaining to booths are necessary to eliminate the masturbation and sexual activity that are known to occur in closed booths and which present significant health and safety concerns with respect to communicable diseases, including AIDS. A number of courts have held that combating the spread of AIDS and STDs is a significant government interest, and that prohibiting concealed or enclosed booths in a sexually oriented establishment is a narrowly tailored means of serving that interest. Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Ca1.App.3d 980 (1985); Pleasureland Museum, Inc. v. Bezctter, 288 F.3d 988 (7th Cir. 2002); Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123 (3rd Cir. 1993); Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991); Doe v. City of Minneapolis, 898 F.2d 612 (8th Cir. 1990); Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165 (4th Cir. 1986). The City Council takes further note of the Ninth Circuit's decision in Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982) and its finding that there is no constitutional right to unobserved masturbation in a public place. The City Council also recognizes the California case Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Cal.App.3d 980 (1985), which found that the right to privacy guaranteed by the California Constitution does not protect the right to unobserved masturbation in a public place. Further, the city takes note of the Eleventh Circuit's validation of a restriction on the size of booths in Lady J. Lingerie, Inc. v. City of.Iacksonville, 176 F.3d 1358 (11th Cir. 1999), including the Court's finding that "[a]mple evidence ... supports the ... finding that illegal and unhealthy activities take place in small rooms at adult entertainment establishments." M. In recognition of the negative secondary effects generated by live sexually oriented entertainment, a number of courts have upheld distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and precluded direct exchange of monies between performers and patrons at sexually oriented businesses that provide live entertainment including, but not limited to: Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 374; Tily B. v. City of Newport Beach, 69 Ca1.App.4th 1 (1999); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); BSA, Inc. v. King County, 804 F.2d 1104 (9th Cir. 1986); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Parker v. Whitfield County, 463 S.E.2d 116 (Ga. 1995); and Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995). Courts have found that dancers who perform nude or semi-nude on stage at sexually oriented cabarets are the same individuals who then move off stage to offer lap dances, couch dances, or other similar off stage performances. Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005). Therefore, Chula Vista reasonably believes it is necessary to impose distance limitations between performers and patrons and prohibit physical contact between performers and patrons during all performances, whether on or off stage, in order to guard against the documented secondary effects. N. The City Council believes that prohibiting physical contact between performers and patrons at sexually oriented businesses, requiring separate entrances for perforners from those used for patrons, requiring separate restrooms for opposite sexes, prohibiting performers from soliciting payment from patrons, and prohibiting the direct payment to performers by patrons are a reasonable and effective means of addressing the legitimate governmental interests 8 1-16 of preventing prostitution, the spread of sexually transmitted diseases, and drug transactions. The case law and studies serve as a reasonable basis to establish this link. O. In recognition of the negative secondary effects generated by live sexually oriented entertainment establishments, anumber of courts have upheld ordinances which require that employees, as well as the owners and managers of such establishments submit background information on criminal convictions related to relatively recent sexual offenses so that a public entity can assess an individual's ability to function responsibly in the sexually oriented business setting. See TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 710 (5th Cir. 1994); and see Club Southern Burlesque, Inc. v. City of Carrolton, 265 Ga. 528, 532, 457 S.E.2d 816 (1995). This includes not only the applicant for an sexually oriented business license, but individuals who work in sexually oriented businesses during regular business hours as performers and non- performers where the criminal background check is limited to a period of no more than five (5) years immediately preceding the date of application. See Doctor John's, Inc. v. City of Roy, 465 F.3d 1150, 1171 (10th Cir. 2006); McCrothers Corp. d/b/a Tree City Bar, et al. v. City of Madan, 728 N.W.2d 124 (2007); Tee & Bee v. City of West Allis, 936 F.Supp. 1479, 1487 (E.D. Wis. 1996); Club Southern Burlesque, Inc., 265 Ga. at 532. In this regard, the City Council, in adopting operational standards, recognizes that the requirement for employee disclosure of recent criminal activity is narrowly tailored and imposes no greater restriction on First Amendment freedoms than is necessary to minimize the secondary harms stated in the ordinance. See TK's Video v. Denton County, 830 F.Supp. 335, 343 (E.D. Tex. 1993), vac'd-in part on other grounds, 24 F.3d 705 (5th Cir. 1994). When, as here, the civil disability provision of a sexually oriented business ordinance is tailored to apply to sex-related crimes only, the "relationship between the offense and the evil to be regulated is direct and substantial." FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1305 (5th Cir. 1988) and affirmed in part and vacated in part in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); see also TK's Video, 24 F.3d at 711 and see Deja Vu of Nashville, Inc. v. Metro Gov't of Nashville and Davidson County, 274 F.3d at 392 (6th Cir. 2001); Brownell v. City of Rochester, 190 F. Supp.2d 472, 494-96 (W.D.N.Y. 2001); Tee & Bee, 936 F.Supp. at 1490. Chula Vista adopts the reasoning of courts finding that "Certain employees of unregulated sexually oriented businesses ...engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments" and has a reasonable basis to believe this reasoning is applicable in the Chula vista community. Further, the "fact that an applicant for an sexually oriented use permit has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this ordinance." Hence, "[t]he barring of such individuals from employment in sexually oriented businesses for a specified period of years serves to prevent distribution of illegal material, to prevent conduct which leads to the transmission of sexually transmitted diseases, and to preclude the establishment of criminal enterprises within the City." Dr. John's at 1171 n. 30. P. The City Council also finds the establishment of an sexually oriented business regulatory licensing process and operational standards for sexually oriented businesses are legitimate and reasonable means of ensuring that: 1. Operators of and performers at sexually oriented businesses comply with the City's regulations; 9 1-~7 2. The recognized adverse secondary impacts of a proposed sexually oriented business are mitigated; 3. Sexually oriented business operators have specific guidelines with respect to the manner in which they can operate a sexually oriented business; and 4. The applications for sexually oriented business regulatory licenses are handled fairly and expeditiously. Q. The City Council recognizes the possible harmful effects on children and minors exposed to the effects of sexually oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.). The City Council further takes legislative notice of the cases that recognize that protection of minors from sexually explicit materials is a compelling government interest, including Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Ca1.App.4th 1075 (1995). R. While the City Council is obligated to protect the rights conferred by the United States Constitution to sexually oriented businesses, it does so in a manner that ensures the continued and orderly use and development of property within the City and diminishes, to the greatest extent feasible, those undesirable adverse secondary effects which the above mentioned studies have shown to be associated with the operation of sexually oriented businesses. S. Licensing permits, locational restrictions and operating standards are a legitimate and reasonable means of ensuring that sexually oriented businesses are conducted in a manner so as to minimize their adverse secondary effects and to help assure that such operators, businesses, licensees and permittees comply with reasonable regulations related to such requirements to minimize and control problems associated with such businesses and thereby protect the health, safety, and welfare of Chula Vista residents, protect citizens from increased crime, preserve the quality of life, and preserve the character of surrounding neighborhoods and businesses, and deter the spread of urban blight. The zoning and operational requirements contained in this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected sexually oriented businesses in C~iula Vista. T. The City Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication. For example, the closing hours requirement means that sexually oriented businesses are free to operate seven (7) days a week for twenty (20) hours per day. The City Council takes note of the proliferation of sexually oriented material on the Internet, satellite television, direct television, CDs, DVDs, and that these various media provide alternative avenues of communication. Additionally, the City Council takes note that numerous web-based services, such as www.sugardvd.com and www.wantedlist.com, deliver adult videos and DVDs directly to customers' homes via the mail. The City Council recognizes the following review of one of these web-based services: "SugarDVD has made it so easy to rent and view adult movies, you may never leave your house again ... SugarDVD is discreet with quick turnaround times and a massive selection ... 10 1-18 SugarDVD offers six rental plans, catering to the casual porn viewer and diehards who can never get enough hard-core fare." (Hustler Magazine, January 2006.) The City Council also considers and relies on published decisions examining the proliferation of communications on the Internet. (Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) [the principle channel through which many Americans now transmit and receive sexually explicit communication is the Internet]; Anheuser-Busch v. Schmoke, 101 F.3d 325 (4th Cir. 1996), cert. denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the Internet is one available channel of communication]; U. S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); see also U. S. v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 519 U.S. 820 [recognizing the Internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].) The Internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested persons in every community with a mere keystroke. Asexually oriented business no longer has to be "actually" physically located in a city to be available in the community. U. The City Council recognizes that adult devices (i.e. adult novelties and/or adult related products) such as dildos, fur-lined handcuffs, leather whips, anal beads, and devices that are physical representations of human genital organs, are not speech and enjoy no First Amendment protections. (See Ford v. State of Texas, 753 S.W.2d 451, 452-453 (1988); Sewell v. State of Georgia, 233 S.E.2d 187, 188-189 (1977); Chamblee Visuals, LLC v. City of Chamblee, 506 S.E.2d 113, 115 (1998); and Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020 (5th Cir. 1981).) V. The City Council has also determined that a closing hours requirement promotes the reduction of deleterious secondary effects from sexually oriented facilities and reasonably relies on prior court decisions on the need for closing hours including Center for Fair Public Policy v. Maricopa County ("Maricopa"), 336 F.3d 1153 (9th Cir. 2003); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999); Lady J. Lingerie, Inc. v. City of.Iacksonville, 176 F.3d 1358 (11th Cir. 1999); Lady J. Lingerie, Inc. v. City of.Iacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997); Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); National Amusements Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995); Mitchell v. Comm'n on Adult Enter. Est. of the State of Delaware, 10 F.3d 123 (3rd Cir. 1993); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995). The City Council also takes legislative notice of (a) the Report of the Attorney General's Working Group on the Regulation of Sexually-Oriented Businesses, Minnesota (1989), which concluded that surrounding communities are negatively impacted by 24-hour-a-day or late night operation of sexually oriented businesses; and (b) the analysis presented by Scott Bergthold in his report, Closin' Time: Effective Regulation of Adult Businesses' Hours of Operation (2000). Additionally, the City Council takes legislative notice of Peep Show Establishments, Police Activity, Public Place and Time: A Study of Secondary Effects in San Diego, California, by Daniel Linz et al. (2004) and Do Peep-shows "Cause" Crime? A response to Linz, Paul, and Yao, by Richard McCleary et al. (2006). Based on these cases, reports and analyses, as well as the findings of this ordinance, the City Council has a reasonable basis to believe and does conclude that the hours of operation provision is necessary in light of the fact that sexually oriented businesses have been found to accompany and aggravate crime and to deplete police time and resources in the late night and early morning hours. 11 1-19 W. It is not the intent of the City Council of Chula Vista in enacting this ordinance or any provision thereof to condone or legitimize the distribution of obscene material, and the City and its Council recognize that state law prohibits the distribution of obscene materials and expect and encourage law enforcement officials to enforce state obscenity statutes against such illegal activities in Chula Vista. X. The City Council does not intend to regulate in any area preempted by California law including, but not limited to, regulation of obscene speech, nor is it the intent of the City Council to preempt regulations of the state Alcoholic Beverage Control Department ("ABC"). Y. Nothing in this ordinance is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any other City ordinance in any respect, or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof. _ Z. The City Council finds that licensing and operational standards are a legitimate and reasonable means of accountability to ensure that operators and performers and non- performers employed at sexually oriented facilities comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation. AA. The licensing and operation provisions adopted herein are necessary in order to protect the public health, safety and welfare by providing a mechanism to address the adverse secondary effects associated with the establishment and operation of unregulated or under-regulated sexually oriented businesses. SECTION 2. AMENDMENT OF MUNICIPAL CODE CHAPTER 9.13 (LIVE ENTERTAINMENT LICENSING AND REGULATIONS). Chapter 9.13 of the Chula Vista Municipal Code, entitled "Live Entertainment Licensing and Regulations" is hereby repealed in its entirety and amended in its entirety to read as follows: CHAPTER 9.13 SEXUALLY ORIENTED BUSINESSES AND SEXUALLY ORIENTED LICENSING FOR DESIGNATED INDIVIDUALS Sections: 9.13.010. Purpose. 9.13.020. Definitions. 9.13.030. License required. 9.13.040. Issuance of license. 9.13.050. Inspection. 9.13.060. Intentionally omitted. 9.13.070. Suspension or revocation of a sexually oriented business license. 9.13.080. Appeal procedures. 9.13.090. Transfer of sexually oriented regulatory license. 12 1-20 9.13.100. Operating standards. 9.13.110. Violations. 9.13.120. Applicability of Chapter to existing businesses. 9.13.130. Regulations non-exclusive. 9.13.010 Purpose. It is the purpose of this Chapter to regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City. The provisions of this Chapter have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this Chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors-and exhibitors of sexually oriented entertainment to their intended market. 9.13.020 Definitions. For purposes of this Chapter, the words and phrases defined in the sections hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context. A. "Adult arcade" shall mean a business establishment to which the public is permitted or invited and where coin, card or slug operated or electronically, electrically or mechanically controlled devices, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing "specified sexual activities" or "specified anatomical areas." Such devices shall be referred to as "adult arcade devices." B. "Adult Bookstore" or "Adult Video Store" means a commercial establishment which, as a regular and substantial course of conduct offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictuzes, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas." C. "Adult booth/individual viewing area" shall mean a partitioned or partially enclosed portion of a sexually oriented business used for any of the following purposes: 1. Where a live or taped performance is presented or viewed, where the performances and/or images displayed or presented are distinguished or characterized by their emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas;" or 2. Where "adult arcade devices" are located. 13 1-21 D. "Adult Cabaret" means a business establishment (whether or not serving alcoholic beverages) that features "adult live entertainment." E. "Adult cabaret dancer" shall mean any person who is an employee of an "adult cabaret" who, with or without any compensation or other form of consideration, performs live entertainment and whose performance on a regular and substantial basis focuses on or emphasizes the adult cabaret dancer's breasts, genitals, and/or buttocks, but does not involve exposure of "specified anatomical areas" or depicting or engaging in "specified sexual activities." "Adult cabaret dancer" does not include a patron. F. "Adult hotel/motel" shall mean a "hotel" or "motel" (as defined in the Municipal Code) that is used for presenting on a regular and substantial basis images through closed circuit television, cable television, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices that are distinguished or characterized by the emphasis on matter depicting or describing or relating to "specified sexual activities" or "specified anatomical areas." G. "Adult live entertainment" shall mean any physical human body activity, whether performed or engaged in, alone or with other persons including, but not limited to, singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, in which: (1) the performer (including, but not limited to, topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar performers) exposes to public view, without opaque covering, "specified anatomical areas;" and/or (2) the performance or physical human body activity depicts, describes, or relates to "specified sexual activities" whether or not the specified anatomical areas are covered. H. "Adult Model Studio" means a business establishment which provides for any form of consideration, the services of a live human model, who, for the purposes of sexual stimulation of patrons, displays "specified anatomical areas" to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying for such services. "Adult model studio" does not include schools maintained pursuant to standards set by the Board of Education of the State of California including the following: 1. A college, junior college, or university supported entirely or partly by taxation; or 2. By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation. I. "Adult motion picture theater" means a commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas" are regularly shown to more than five persons for any form of consideration. J. "Adult oriented material" shall mean accessories, paraphernalia, books, magazines, laser discs, compact discs, digital video discs, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or electronically 14 1-22 generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." "Adult oriented material" shall include "sexually oriented merchandise." K. "Adult retail store" shall mean a business establishment having as a regular and substantial portion of its stock in trade, "sexually oriented material." L. "Characterized by" means describing the essential character or quality of an item. As applied in this Chapter, no business shall be classified as a sexually oriented business by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America. M. "City" means the City of Chula Vista, California. M. "Employee" describes and pertains to any person who performs any service on the premises of a sexually oriented business, on a full time, part time, or contract basis, regardless of whether the person is denominated an employee, independent contractor, agent, lessee, or otherwise. Employees shall include "cabaret dancers," "performers" and "non-performers." Employee does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises. O. "Establish" or "Establishment" means and includes any of the following: 1. The opening or commencement of any sexually oriented business as a new business; 2. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; 3. The addition of any sexually oriented business to any other existing sexually oriented business; 4. The relocation of any "sexually oriented business;" or 5. Physical changes that expand the square footage of an existing "sexually oriented business" by more than ten percent (10%). P. "Floor space" means the floor area inside an establishment that is visible or accessible to patrons for any reason, excluding restrooms. Q. "Influential interest" in a sexually oriented business means any of the following: (1) the actual power to operate the sexually oriented business or control the operation, management or policies of the sexually oriented business or any legal entity which operates the sexually oriented business (an "operator" is deemed to have an influential interest in the sexually oriented business); (2) possession or control of any right, title or interest in or to ten percent (10%) or more of the ownership of a sexually oriented business or of any legal entity with ownership or management authority of a sexually oriented business, including any security 15 1-23 interest therein with rights of ownership or management authority upon default; or (3) holding an office (e.g., president, vice president, secretary, treasurer, managing member, managing director, etc.) in a legal entity which operates or has a ten percent (10%) or more ownership interest in the sexually oriented business. R. "Licensee" means a person in whose name a regulatory license to operate a sexually oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for a sexually oriented business regulatory license. S. "Non performer "shall mean a person who is an employee of a sexually oriented business, but does not satisfy the definition of a "performer," who works in the sexually oriented business during regular business hours. This shall not include after hours workers providing janitorial, trash or similar after hours services. T. "Operator" means any person on the premises of a sexually oriented business who manages, supervises, or controls the business or a portion thereof. A person may be found to be an operator regardless of whether such person is an owner, part owner, or licensee of the business. U. "Performer" shall mean a person who is an employee of an adult business or any other person who, with or without any compensation or other form of consideration, provides "adult live entertainment" for patrons of a "sexually oriented business." V. "Person" means an individual, proprietorship, partnership, corporation, association, or other legal entity. W. "Premises" means the real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for a sexually oriented business regulatory license. X. "Sexually oriented business" means: 1. A business establishment or concern that as a regular and substantial course of conduct operates as an "adult bookstore or adult video store," "adult cabaret," "adult motion picture theater," "adult model studio," "adult retail store," adult arcade," or "adult motel or hotel." 2. A business establishment or concern which as a regular and substantial course of conduct offers, sells or distributes "sexually oriented material" or "sexually oriented merchandise," or which offers to its patrons materials, products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas" but not including those uses or activities which are preempted by state law. Y. "Sexually oriented merchandise" shall mean sexually oriented implements, paraphernalia, or novelty items such as, but not limited to: dildos, auto sucks, sexually oriented 16 1-24 vibrators, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity or distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." Z. "Specified Anatomical Areas" means and includes: 1. Less than completely and opaquely covered: human genitals; pubic region; buttock; and female breast below a point immediately above the top of the areola; and 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. AA. "Specified Criminal Activity" means any of the following specified crimes for which less than two (2) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) less than five (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period. Rape offenses set forth in California Penal Code § 261; 2. Pimping or soliciting offenses set forth in California Penal Code § 266(h); 3. Pandering offenses set forth in California Penal Code § 266(i); 4. Any offense described in California Penal Code § § 311 (311(a) Obscene Matter) and 313 (Harmful Matter); 5. Lewd, indecent, or obscene conduct offenses set forth in California Penal Code §§ 314, 647a or 647d; 6. Gambling or prostitution offenses set forth in California Penal Code § § 315, 316, 318 or 647b; 7. Sex offenses requiring registration under California Penal Code § 290; 8. Controlled substance offenses described in California Health and Safety Code &§ 11054, 11055, 11056, 11057, 11058, 11350, 11351, 11352, 11359, 11360, 11375, 11377, 11378, 11379, 11550 or 11590; or 9. Any offense in another jurisdiction that, had the predicate act(s) been committed in California, would have constituted any of the foregoing offenses. 17 1-25 BB. "Specified sexual activities "shall mean and include any of the following, irrespective of whether performed directly or indirectly through clothing or other covering: 1. Intentional presentation of human genitals in a state of sexual stimulation or arousal; and/or 2. Acts of human masturbation, sexual stimulation or arousal; and/or 3. Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; and/or 4. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, or bondage and/or restraints; and/or 5. Human excretion, urination, menstruation, vaginal or anal irrigation; and/or - " 6. Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast. CC. "Transfer of Ownership or Control" of a sexually oriented business means any of the following: 1. The sale, lease, or sublease of the business; 2. The transfer of an interest which constitute an "influential interest" in the business, whether by sale, exchange, assignment, pledge or similar means; or The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business. 9.13.030 License required. A. All sexually oriented businesses are subject to the sexually oriented business regulatory license requirements of this Chapter as well as all other applicable ordinances of the City and laws of the State of California. It shall be unlawful for any person to establish, operate, engage in, conduct, or carry on any sexually oriented business within Chula Vista unless the person first obtains, and continues to maintain in full force and effect, a sexually oriented business regulatory license as herein required. Any occurrence of the "establishment" of a sexually oriented business as defined in this Chapter, shall require a new application for a sexually oriented business regulatory license. The sexually oriented business regulatory license shall be subject to the development and operational standards of this Chapter and the requirements of the zoning or other land use provisions applicable to where the facility is located. B. License applicants shall file a written, signed and verified application in person at the City's Development Services counter on a form provided by the City's Director of 18 1-26 Development Services or his or her designee ("the Director"). Such application shall contain the following information and be accompanied by the following documents: 1. If the license applicant is an individual, the individual shall state his or her legal name, including any aliases,. and address, and shall submit satisfactory written proof that he or she is at least eighteen (18) years of age. 2. If the license applicant is a partnership, the partners shall state the partnership's complete name, address, the names of all partners, and whether the partnership is general or limited; and shall attach a copy of the partnership agreement, if any. 3. If the license 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 the State of California, the names and capacities of all officers and Directors, the name of the registered corporate agent, and the address of the registered office for service of process. 4. A signed and verified statement that the license applicant, if an individual, or if a partnership or corporation by its partners, its officers or its Directors, that the applicant has not pled guilty or nolo contendere or been convicted of specified criminal activities. 5. The license applicant shall provide a list of all non-performers, which includes the non-performer's legal name, and mailing address, and satisfactory written proof that each non-performer is at least eighteen (18) years of age. If the sexually oriented business regulatory license is granted, the licensee shall maintain this list with current and updated information and shall make this list available for inspection upon reasonable notice. 6. Each non-performer working in a managerial capacity shall provide the license applicant with a signed and verified statement that the non-performer has not pled guilty or pled nolo contendere or been convicted of a specified criminal activity. 7. Each person with an influential interest in the sexually oriented business or in a legal entity with an influential interest in the sexually oriented business shall sign the application for a license as an applicant. All persons who sign the application must also provide names, aliases, addresses, and date of birth. 8. If the license applicant intends to operate the sexually oriented business under a name other than that of the license applicant, the license applicant shall file the fictitious name of the sexually oriented business and show proof of registration of the fictitious name. 9. A description of the type of sexually oriented business for which the license is requested and the proposed address where the sexually oriented business will operate, plus the names and addresses of the owners and lessors of the sexually oriented business site. 10. The address to which notice of action on the application is to be mailed. 11. A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the sexually oriented business. The 19 1-27 sketch or diagram need not be professionally prepared but must be oriented to the north or some other designated street or object and 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. 12. A diagram of the off-street parking areas and entries to the premises of the sexually oriented business, also showing the location of the lighting system required by this Chapter. C. The completed application shall be accompanied by anon-refundable application fee. The amount of such fees shall be set by resolution of the City Council. D. The completeness of an application for a sexually oriented business regulatory license shall be determined by the Director or within five (5) City business days of its submittal. 'If the Director determines that the license application is incomplete, the Director shall immediately notify in writing the license applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Such writing shall be deposited in the U.S. mail, postage prepaid, immediately upon determination that the application is incomplete. Within five (5) City business days following the receipt of an amended application or supplemental information, the Director shall again determine whether the application is complete in accordance with the provisions set forth above. Evaluation and notification shall occur as provided herein until such time as the application is found to be complete. E. The fact that a license applicant possesses other types of state or city licenses does not exempt the license applicant from the requirement of obtaining a sexually oriented business regulatory license under this Chapter. 9.13.040 Issuance of license. A. Upon the filing of a completed application for a sexually oriented business regulatory license, the Director shall immediately write or stamp the application "Received" and, in conjunction with City staff, shall promptly investigate the information contained in the application to determine whether a sexually oriented business regulatory license shall be granted. Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application, nor is it grounds to extend the time period to conduct a hearing pursuant to this section. B. Within twenty-one (21) days after the filing of a completed sexually oriented regulatory permit application, the investigation shall be completed. The Director shall promptly notice a public hearing with notice of such hearing to be made pursuant to California Government Code §§ 65091 and 65905. Said public hearing shall be conducted within fifteen (15) days of the expiration of the completed investigation period. C. In reaching a decision on the application, the Director shall not be bound by the formal rules of evidence in the California Evidence Code. D. The Director shall issue the written decision on .the application for a sexually oriented business regulatory license within four (4) City business days after the public hearing 20 1-28 required by this section. The failure of the Director to render any decision within the time frames established in any part of this section shall be deemed to constitute an approval, subject to compliance with all operational standards of Section 9.13.100 and all City zoning requirements, including those found in Section 19.58.024 of this Code, and shall be subject to appeal to the City Council, pursuant to Section 9.13.080. The decision of the Director shall be hand delivered or mailed to the applicant at the address provided in the application, and shall be provided in accordance with the requirements of this code. E. Notwithstanding any provisions in this section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this section or may request a continuance regarding any decision or consideration by the City of the pending application. Extensions of time sought by applicants shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on applications. F. The Director shall grant or deny the application in accordance with the provisions of this section, and so notify the applicant as follows: 1. The Director shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. 2. If the application is denied, the Director shall attach to the application a statement of the reasons for the denial. 3. If the application is granted, the Director shall attach to the application a sexually oriented business regulatory license. G. The Director shall grant the application and issue the sexually oriented business regulatory license upon findings that the proposed business meets, or will meet, all of the development and operational standards and requirements of this Chapter, unless the application is denied based upon one or more of the criteria set forth in subsection (I) of this section. H. If the Director grants the application, the applicant may begin operating the sexually oriented business for which the license was sought, subject to strict compliance with the development and operational standards and requirements of this Chapter. The licensee shall post the license conspicuously in the premises o~the sexually oriented business. I. The Director shall deny the application if the applicant fails to establish any of the following: 1. The sexually oriented business complies with the City's zoning requirements as to its underlying zoning designation and other locational requirements. 2. The sexually oriented business complies with the development, operational or performance standards found in this Chapter. 3. The license applicant is at least eighteen (18) years of age. 21 1-29 4. The required application fees have been paid. 5. The applicant as defined in Section 9.13.030 B.1-3 and each non- performer working in a managerial capacity has not pled guilty or pled nolo contendere or been convicted of a specified criminal activity. 6. The application complies with section 9.13.030. J. A permittee, applicant or substantially related entity wherein the new application is made by an individual or previous entity exercising management or oversight or control of the sexually oriented business, cannot re-apply for a sexually oriented business regulatory license for a particular location within one (1) year from the date of prior denial. K. Any affected person may appeal the decision of the Director in writing within ten (10) days in accordance with the provisions of Municipal Code § 9.13.080. 9.13.050 Inspection. Sexually oriented businesses and sexually oriented business employees shall permit City staff and/or its agents to inspect, from time to time, the portions of the sexually oriented business premises where patrons are permitted, for the purpose of ensuring compliance with the specific regulations of this Chapter. 9.13.060 Intentionally omitted. 9.13.070 Suspension or revocation of a sexually oriented business license. A. On determining that grounds for license suspension or revocation exist, the Director shall furnish written notice of the proposed suspension or revocation to the licensee. Such notice shall set forth the time and place of a hearing and the ground or grounds upon which the hearing is based, the pertinent Municipal Code Sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the licensee, or shall be delivered to the licensee personally, at least ten (10) days prior to the hearing date. Hearings pursuant to this section shall be noticed in accordance with California Government Code §§ 65091 and 65905 and conducted by the Director or his/her designee which may include a third party hearing officer. Hearings pursuant to this section shall be conducted in accordance with procedures established by the Director but, at a minimum, shall include the following: 1. All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. 2. The Director shall not be bound by the formal rules of evidence. 3. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness at the request of the licensee. Extensions of time or continuances sought by a licensee shall not be considered delay on the part of the City or 22 1-30 constitute failure by the City to provide for prompt decisions on license suspensions or revocations. 4. The Director's decision maybe appealed in accordance with Municipal Code § 9.13.080. B. A license may be suspended or revoked based on the following causes arising from the acts or omissions of the licensee, or an employee, partner, operator or manager of the licensee: 1. The building, structure, equipment, or location used by the sexually oriented business fails to comply with all provisions of these regulations and this section relating to sexually oriented businesses, including the sexually oriented business operational standards contained in section 9.13.100 and the zoning requirements of section 19.58.024, and all other applicable building, fire, electrical, plumbing, health, and zoning requirements of the Chula Vista Municipal Code. 2. The licensee has failed to obtain or maintain all required City licenses or permits with respect to the business or the premises. 3. The licensee has made any false, misleading, or fraudulent statement of material fact in the application for a sexually oriented business license. 4. The license is being used to conduct an activity different from that for which it was issued. 5. That an employee of the sexually oriented business has been convicted of two (2) or more specified criminal activities that occurred in or on the licensed premises within a twelve (12) month period and was employee of the sexually oriented business at the time the offenses were committed. 6. That the use for which the approval was granted has ceased to exist, has been suspended or has not been active for six (6) months or more. 7. That the transferee/new owner of a sexually oriented business or sexually oriented business regulatory license failed tb comply with the requirements of this Chapter. 8. The licensee, operator, or manager has knowingly allowed or permitted, or has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the sexually oriented business; or a licensee has been convicted of violating any of the following state laws on the premises of the sexually oriented business: a. Rape offenses set forth in California Penal Code § 261; 266(h); b. Pimping or soliciting offenses set forth in California Penal Code § c. Pandering offenses set forth in California Penal Code § 266(i); 23 1-31 d. Any offense described in California Penal Code § § 311 (311(a) Obscene Matter) and 313 (Harmful Matter); Penal Code § 314; e. Lewd, indecent, or obscene conduct offenses set forth in California f. Gambling or prostitution offenses set forth in California Penal Code §§ 315, 316, 318 or 647b; g. Sex offenses requiring registration under California Penal Code § 290; h. Controlled substance offenses described in California Health and Safety Code §§ 11054, 11055, 11056, 11057, 11058, 11351 or 11590; or i. An act or omission in violation of any of the requirements of this Chapter if such act or omission is with the knowledge, authorization, or approval of the licensee or is as a result of the licensee's negligent supervision of the employees of the sexually oriented business. This includes the allowance of activities that are or become a public nuisance which includes the disruptive conduct of business patrons whether on or immediately off the premises where such patrons disturb the peace, obstruct traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property. The fact that any relevant conviction is being appealed shall have no effect on the revocation of the license, provided that, if any conviction which serves as a basis of a license revocation is overturned or reversed on appeal, that conviction shall be treated as null and of no effect for revocation purposes. C. After holding the hearing in accordance with the provisions of this section, if the Director finds and determines that there are grounds for suspension or revocation, the Director shall impose one of the following: 1. Suspension of the license for a specified period not to exceed six (6) months; or 2. Revocation of the license. The Director shall render a written decision that shall be hand delivered or overnight mailed to the licensee within five (5) days of the public hearing. D. In the event a license is revoked pursuant to this section, another sexually oriented business regulatory license to operate a sexually oriented business shall not be granted to the licensee or an entity related to the licensee within twelve (12) months after the date of such revocation. 9.13.080 Appeal procedures. 24 1-32 A. After approval, denial, suspension or revocation of a license, any affected person may appeal the decision to the City Council in writing within ten (10) days after the written decision. B. Consideration of an appeal of the decision shall be at a public hearing, notice of which shall be given pursuant to California Government Code §§ 65091 and 65905 and which hearing shall occur within thirty (30) days of the filing or initiation of the appeal. C. The City Council action on the appeal of the decision shall be by a majority vote of the members present and upon the conclusion of the de novo public hearing, the City Council shall grant or deny the appeal. The City Council's decision shall be final and conclusive and shall be rendered in writing within four (4) City business days of the hearing, such written decision to be mailed to the party appealing the Director's decision. D. In reaching its decision, the City Council shall not be bou_ nd by the formal rules of evidence. E. Notwithstanding any provisions in this section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this section or may request a continuance regarding any decision or consideration by the City of the pending appeal. Extensions of time sought by applicants shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on applications. F. Failure of the City Council to render a decision to grant or deny an appeal of a license denial within the time frames established by this section shall be deemed to constitute an approval of the sexually oriented business regulatory license. G. The time for a court challenge to a decision of the City Council is governed by California Code of Civil Procedure § 1094.8. H. Notice of the City Council's decision and its findings shall include citation to California Code of Civil Procedure § 1094.8. I. Any applicant or licensee whose license has been denied pursuant to this section shall be afforded prompt judicial review of ghat decision as provided by California Code of Civil Procedure § 1094.8. 9.13.090 Transfer of sexually oriented regulatory license. A. A license holder shall not operate a sexually oriented business under the authority of a sexually oriented business license at any place other-than the address of the a sexually oriented business stated in the application for the license. B. In the event of a transfer of ownership of the sexually oriented business, the new owner shall be fully informed of the requirements of this chapter, including the operational and development standards herein. 25 1-33 C. In the event of a transfer of a sexually oriented business or the sexually oriented business license, the transferee shall complete an application for a sexually oriented business license and provide all information specified in Section 9.13.030 to the Director. The transferee shall be considered an applicant as provided in this chapter and the transfer shall only become effective if the application is granted based on the criteria set forth in Section 9.13.040. 9.13.100 Operating standards. A. Hours of operation. It shall be unlawful for any owner, operator, manager or employee of a sexually oriented business to allow such sexually oriented business to remain open for business, or to license any employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 2:00 a.m. and 6:00 a.m. of any day excepting here from an "adult hotel/motel." B. On-site manager. All sexually oriented businesses shall have a responsible person who shall be at least 18 years of age and shall be on the premises to act as manager at all times during which the business is open. No performer may serve as the manager. The individual(s) designated as the on-site manager shall provide his/her name to the Chief of Police to receive all complaints and be given by the owner and/or operator the responsibility and duty to address and immediately resolve all violations taking place on the premises. An individual cannot serve as an on-site manager if he/she has pled guilty or pled nolo contendere or been convicted of a specified criminal activity. C. Interior of premises. No exterior door or window on the premises of a sexually oriented business shall be propped or kept open at any time while the business is open and any exterior windows shall be covered with opaque coverings at all times. D. Displays of sexually oriented materials. All displays of materials characterized or distinguished on matters describing or relating to "specified sexual activities" or "specified anatomical areas," as defined in this code, shall be completely screened from public view as viewed from adjacent sidewalks or public rights-of--way. E. Signs. All sexually oriented businesses shall comply with the following sign requirements, in addition to those provided elsewhere in this Code. Should a conflict exist between the requirements of other provisions of the Code and this subsection, the more restrictive shall prevail. If a sexually oriented business does not serve alcohol, it shall post a notice prior to entry to the area of public assembly and within ten feet (10') of every entrance used by customers for access to the establishment, stating that persons below the age of eighteen (18) years of age are prohibited from entering onto the premises or within the confines of the sexually oriented business. This notice shall be posted on a wall in a place of prominence. The dimensions of the notice shall be no less than six inches (6") by six inches (6"), with a minimum typeface of 25 points. If the sexually oriented business serves alcohol, it shall comply with all notice and posting requirements of the Alcoholic Beverage Control Department. F. Exterior lighting requirements. All exterior areas, including parking lots, of the sexually oriented business shall be illuminated at a minimum of 1.50 foot candle, maintained and 26 1-34 evenly distributed at ground level with appropriate devices to screen, deflect or diffuse the lighting in such manner as to prevent glare or reflected light from creating adverse impacts on adjoining and nearby public and private properties and to avoid night pollution. Inoperable and/or broken lights shall be replaced within twenty-four (24) hours. G. Interior lighting requirements. All interior areas of the sexually oriented business excepting therefrom adult hotels/motels shall be illuminated at a minimum of 1.00 foot candle, maintained and evenly distributed at floor level. Inoperable and/or broken lights shall be replaced within twenty-four (24) hours, excepting herefrom an adult hotel/motel. H. Regulation of public restroom facilities. If the sexually oriented business provides restrooms for patron use, it shall provide separate restroom facilities for male and female patrons. The restrooms shall be free from sexually oriented material. Only one (1) person shall be allowed in each restroom at any time, unless otherwise required by law, in which case the sexually oriented business shall employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant shall insure that no person of the opposite sex is permitted into the restroom, and that not more than one (1) person is permitted to enter a restroom stall, unless otherwise required by law, and that the restroom facilities are used only for their intended sanitary purposes. Access to restrooms for patron use shall not require passage through an area used as a dressing area by performers. I. Trash. All interior trash cans shall be emptied into a single locked trash bin lined with a plastic bag or with individually bagged trash at least once a day. At least four (4) times a day, the front and rear exteriors of any sexually oriented business, along with the parking lot, shall be inspected for trash and debris and any trash and debris found shall be immediately removed and placed into a single locked trash bin lined with a plastic bag. J. Sexually oriented business offering adult live entertainment -additional operating requirements. The following additional requirements shall apply to sexually oriented businesses providing adult live entertainment: 1. No person shall perform adult live entertainment for patrons of a sexually oriented business except upon a permanently fixed stage at least eighteen inches (18") above the level of the floor, and surrounded with a three foot (3') high barrier or by a fixed rail at least thirty inches (30") in height. No patron shall be permitted on the stage while the stage is occupied by a performer(s) and/or adult cabaret dancer(s). This provision shall not apply to an individual viewing area where the performer is completely separated from the area in which the performer is viewed by an individual by a permanent, floor to ceiling, solid barrier. 2. No performer or adult cabaret dancer shall be within six feet (6') of a patron, measured horizontally, while the performer or adult cabaret dancer is performing adult live entertainment. While on stage, no performer or adult cabaret dancer shall have physical contact with any patron, and no patron shall have physical contact with any performer or adult cabaret dancer. 27 1-35 3. As to off stage performances, no performer or adult cabaret dancer shall perform "adult live entertainment" off stage. As to an adult cabaret dancer performing off stage, a distance of at least six feet (6') shall be maintained between the adult cabaret dancer and the patron(s) at all times. During off stage performances, no adult cabaret dancer shall have physical contact with any patron, and no patron shall have physical contact with any adult cabaret dancer. 4. In addition, while on the premises, no performer or adult cabaret dancer shall have physical contact with a patron and no patron shall have physical contact with a performer or adult cabaret dancer, which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the buttocks, perineum, anal region, or female breast with any part or area of any other person's body either before or after any adult live entertainment or off stage performances by such performer or adult cabaret dancer. Patrons shall be advised of the no touching requirements by signs and, if necessary, by employees of the establishment. This prohibition does not extend to incidental touching. 5. Patrons shall be advised of the separation and no touching requirements by signs conspicuously displayed and placed on the barrier between patrons and performers and utilizing red or black printing of letters not less than one inch (1") in size. And, if necessary, patrons shall also be advised of the separation and no touching requirements by employees of the establishment. 6. All employees of the sexually oriented facility, except therefrom performers while performing on the fixed stage, while on or about the premises or tenant space, shall wear at a minimum an opaque covering which covers their specified anatomical areas. 7. Patrons shall not throw money to performers, place monies in the performers' costumes or otherwise place or throw monies on the stage. If patrons wish to pay or tip performers, payment or tips may be placed in containers. Patrons shall be advised of this requirement by signs conspicuously displayed and placed on the barrier between patrons and performers and utilizing red or black printing of letters not less than one inch (1") in size. If necessary, patrons shall also be advised of the tipping and gratuity requirements by employees of the sexually oriented business. 8. The sexually oriented business shall provide dressing rooms for performers, that are separated by gender anti exclusively dedicated to the performers' use and which the performers shall use. Same gender performers may share a dressing room. Patrons shall not be permitted in dressing rooms. 9. The sexually oriented business shall provide an entrance/exit to the establishment for performers that is separate from the entrance/exit used by patrons, which the performers shall use at all times. 10. The sexually oriented business shall provide access for performers between the stage and the dressing rooms that is completely separated from the patrons. If such separate access is not physically feasible, the sexually oriented business shall provide a minimum three foot (3') wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers capable of (and which 28 1-36 actually results in) preventing any physical contact between patrons and performers and the patrons must also be three feet (3') away from the walk aisle. Nothing in this section is intended to exempt the sexually oriented business from compliance with the provisions of Title 24 of the California Code of Regulations pertaining to handicapped accessibility. 11. All sexually oriented businesses featuring live entertainment shall employ security guards in order to maintain the public peace and safety, based upon the following standards: a. Provide at least one security guard at all times while the business is open. b. If the occupancy limit of the premises is greater than 21 persons, an additional security guard shall be on duty. c. Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of these regulations. Security guard(s) 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 and bonded 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. d. Between the hours of 8:00 p.m. and thirty (30) minutes after the established closing time of the facility, security guard(s) shall regularly patrol the parking lot and adjacent outdoor areas of the facility to maintain order therein and prevent any illicit or nuisance activity. e. Security guard(s) shall be regularly posted at the doors used by the performers when said doors are in use. f. The sexually oriented business shall provide a security system that visually records and monitors all parking lot areas as well as all entrances and exits to or from the facility. The recordings shall have sufficient definition/fidelity to allow for identification of persons entering or exiting the premises. These recordings shall be retained on site for 30 days and shall be made available within 24 hours if requested by a member of the City police department or other police officer for a legitimate law enforcement purpose. K. Adult motion picture theater additional operating requirements. The following additional requirements shall apply to adult motion picture theaters: 1. If the theater contains a hall or auditorium area, the area shall comply with each of the following provisions: a. Have individual, separate seats, not couches, benches, or the like, to accommodate the maximum number of persons who may occupy the hall or auditorium area; 29 1-37 b. Have a continuous main aisle alongside the seating areas in order that each person seated in the hall or auditorium area shall be visible from the aisle at all times; and c. Have a sign posted in a conspicuous place at or near each entrance to the hall or auditorium area which lists the maximum number of persons who may occupy the hall or auditorium area, which number shall not exceed the number of seats within the hall or auditorium area. L. Employment of and services rendered to persons under the age of eighteen (18) years prohibited; twenty-one (21) if liquor is served. 1. Employees. Employees of a sexually oriented business must be at least eighteen (18) years of age. It shall be unlawful for any person with influential interest, manager or other person in charge of any sexually oriented business to employ, contract with, or otherwise retain any services in connection with the sexually oriented business with or from any person who is not at least eighteen (18) years of age. If liquor is served at the sexually oriented business, employees of the sexually oriented business must be at least twenty-one (21) years of age. If liquor is served at the sexually oriented business, it shall be unlawful for any person with influential interest, manager or other person in charge of any sexually oriented business to employ, contract with, or otherwise retain any services in connection with the sexually oriented business with or from any person who is not at least twenty-one (21) years of age. And said persons shall exercise reasonable care in ascertaining the true age of persons seeking to contract with, be employed by, or otherwise service the sexually oriented business. 2. Patrons. Patrons of a sexually oriented business must be at least eighteen (18) years of age. It shall be unlawful for any person with influential interest, manager or other person in charge of any sexually oriented business to permit to enter or remain within the sexually oriented business any person who is not at least eighteen (18) years of age. If liquor is served at the sexually oriented business, patrons must be at least twenty-one (21) years of age. If liquor is served at the sexually oriented business, it shall be unlawful for any person with influential interest, manager or other person in charge of any sexually oriented business to permit to enter or remain within the sexually oriented business any person who is not at least twenty-one (21) years of age. And said persons shall exercise reasonable care in ascertaining the true age of persons entering the sexually oriented business. 3. X-rated movies. The selling, renting and/or displaying of x-rated movies, videotapes, digital video discs (DVDs), compact discs CDs) and laser discs shall be restricted to persons over eighteen (18) years of age. If an establishment that is not otherwise prohibited from providing access to the establishment to persons under eighteen (18) years of age sells, rents, or displays movies, videos, DVDs, CDs or laser discs that have been rated "X" or rated "NC-17" by the motion picture rating industry ("MPAA"), or which have not been submitted to the MPAA for a rating, and which consist of images that are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas, said movies, videos, DVDs, CDs, and laser discs shall be located in a specific section of the establishment where these items are not visible to persons under the age of eighteen (18) and from which persons under the age of eighteen (18) shall be prohibited. 30 1-38 9.13.110 Violations. A. Any owner, operator, manager, employee or independent contractor of a sexually oriented business violating or permitting, counseling, or assisting the violation of any of these provisions regulating sexually oriented businesses shall be subject to any and all civil remedies, including license revocation. All remedies provided herein shall be cumulative and not exclusive. Any violation of these provisions shall constitute a separate violation for each and every day during which such violation is committed or continued. B. In addition to the remedies set forth in section 9.13.110A, any sexually oriented business that is operating in violation of these provisions regulating sexually oriented businesses is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. C. The restrictions imposed pursuant to this section constitute a licensing process, and do not constitute a criminal offense. Notwithstanding any other provision of the Chula Vista Municipal Code, the City does not impose a criminal penalty for violations of the provisions of this ordinance related to sexual conduct or activities. 9.13.120 Applicability of Chapter to existing businesses. A. Licensing Requirements. Any sexually oriented businesses operating in the City prior to the effective date of this Chapter must apply for a license under this Chapter. B. Interior Configuration Requirements. Any preexisting sexually oriented business that is required to, but does not, have interior configurations or stages that meet at least the minimum requirements of section 9.13.100 shall have ninety (90) days from the effective date of this Chapter to conform its premises to said requirements. C. Other Requirements. Except as provided for in subsections 9.13.120(A.) and (B.), sexually oriented businesses shall comply with this Chapter on the date that it takes effect. 9.13.130 Regulations non-exclusive. The provisions of sections 9.13.010 to 9.13.120 of this Chapter regulating sexually oriented businesses are not intended to be exclusive, and compliance therewith shall not excuse non-compliance with any other provisions of the Municipal Code and/or any other regulations pertaining to the operation of businesses as adopted by the City. SECTION 3. AMENDMENT OF CODE. Chapter 9.13 of the Chula Vista Municipal Code is further amended by adding the following sections titled "Sexually Oriented Business Performer License:" SEXUALLY ORIENTED BUSINESS PERFORMER LICENSE Sections: 31 1-39 9.13.140. Sexually oriented business performer license. 9.13.150. Investigation and action on application for sexually oriented business performer license. 9.13.160. Revocation/suspension/denial of sexually oriented business performer license. 9.13.170. Display of license identification cards. 9.13.180. Sexually oriented business performer license nontransferable. 9.13.190. Violations. 9.13.200. Sexually oriented business non-performer license. 9.13.210. Investigation and action on sexually oriented business non-performer license application. 9.13.220. Revocation/Suspension/Denial of sexually oriented business non-performer license. 9.13.230 Severability. 9.13.140 Sexually oriented business performer license. A. No performer/adult cabaret dancer shall be employed, hired, engaged, or otherwise retained in an adult business to participate in or give any live performance displaying "specified anatomical areas" or "specified sexual activities" without first having a valid sexually oriented business performer license issued by the City. B. The Chief of Police or his/her designee shall grant, deny, and renew sexually oriented business performer licenses in accordance with these regulations. C. License applicants shall file a written, signed, and verified application or renewal application on a form provided by the Chief of Police. Such application shall contain the following information: 1. The license applicant's legal name and any other names (including "stage names" and aliases) used by the applicant. 2. Principal place of residence. Age, date and place of birth. 4. Height, weight, hair and eye color, and tattoo descriptions and locations. 5. Each present and/or proposed business address(es) and telephone number(s) of the establishments at which the applicant intends to work. 6. Driver's license or identification riumber and state of issuance. 7. Social security number. 8. Satisfactory written proof that the license applicant is a least eighteen (18) years of age. 32 1-40 9. The license applicant's fingerprints on a Livescan form provided by the Chula Vista police department and two color two by two inch photographs clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant. Fingerprints and photographs shall be taken within six (6) months of the date of application. 10. Whether the license applicant has pled guilty or nolo contendere or been convicted of a specified criminal activity. 11. If the application is made for the purpose of renewing a license, the license applicant shall attach a copy of the license to be renewed. D. The information provided above in subsection C of this section which is personal, private, confidential or the disclosure of which could expose the applicant to the risk of harm will not be disclosed under the California Public Records Act or the open government ordinance. Such information includes, but is not limited to, the applicant's residence address, telephone number, date of birth, age, driver's license and social security number. The City Council in adopting the application and licensing and/or permit system set forth herein has determined in accordance with Government Code § 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this Chapter by ensuring that the applicant's privacy, confidentiality or security interests are protected. The City Clerk shall cause the same to be redacted from any copy of a completed application form made available to any member of the public, the above-mentioned information. E. The completed application shall be accompanied by anon-refundable application fee and an annual license fee. The amount of such fees shall be as set forth in the schedule of fees established by resolution from time to time by the City Council. F. The completeness of an application shall be determined within 24 business hours. The Chief of Police or his/her designee must be available during normal working hours Monday through Friday to accept sexually oriented business performer applications. If the Chief of Police determines that the application is incomplete, the Chief of Police shall immediately inform the applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Upon receipt of a completed sexually oriented business performer application and payment of the license fee specified in Section E above, the Chief of Police shall immediately issue a temporary license which shall expire of its own accord ten (10) business days from the date of issuance and shall only be extended as provided in section 9.13.150. G. This temporary sexually oriented business performer license shall authorize a performer/adult cabaret dancer to commence performance at a sexually oriented business establishment that possesses a valid sexually oriented business regulatory license authorized to provide live entertainment. H. The fact that a license applicant possesses other types of state or city permits or licenses does not exempt the license applicant from the requirement of obtaining a sexually oriented business performer license. 33 1-41 9.13.150 Investigation and action on application for sexually oriented business performer license. A. Upon submission of a completed application, payment of license fees, and issuance of a temporary sexually oriented business performer license pursuant to section 9.13.140, the Chief of Police shall immediately stamp the application "Received" and in conjunction with City staff, including members of the police department, shall promptly investigate the information contained in the application to determine whether the license applicant should be issued a sexually oriented performer business performer license. B. Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The chief of police's decision to grant or deny the adult business performer license shall be made within ten (10) business days from the date the temporary license was issued and in no case shall the decision to grant or deny the license application be made after the expiration of the temporary license. In the event the Chief of Police is unable to complete the investigation within ten (10) business days, he/she shall promptly notify the license applicant and extend the temporary license for up to ten (10) additional business days. In no case shall the investigation exceed twenty (20) days, nor shall the decision to grant or deny the license application be made after the expiration of the temporary license. C. The Chief of Police shall render a written decision to grant or deny the license within the foregoing ten (10) day time period set forth in section 9.13.150(B). Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing ten (10) day period or twenty (20) day period if extended pursuant to section 9.13.150(B), at the address provided by the applicant in the application. D. The Chief of Police shall notify the applicant as follows: 1. The Chief of Police shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. 2. If the application is denied, the Chief of Police shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the license applicant may appeal the denial to the City Manager. The City Manager or a designated hearing officer shall conduct a hearing as described in section 9.13.160(B). 3. If the application is granted, the Chief of Police shall attach to the application an sexually oriented business performer license. 4. The application, as acted upon, and the license, if any, shall be placed in the United States mail, first class postage prepaid, or hand delivered, addressed to the license applicant at the residence address stated in the application in accordance with the time frames established herein. E. The Chief of Police shall grant the application and issue the license unless the application is denied based on one of the grounds set forth in subsection F of this section. 34 1-42 F. The Chief of Police shall deny the application based on any of the following grounds: 1. The license applicant has made false, misleading, or fraudulent statement of material fact in the application for an sexually oriented business performer license. 2. The license applicant is under eighteen (18) years of age. 3. The sexually oriented business performer license is to be used for performing in a business prohibited by laws of the state or city or a business that does not have a valid sexually oriented business regulatory license. 4. The license applicant, has pled guilty, nolo contendere or been convicted of a specified criminal activities. G. Failure of the Chief of Police to render a decision on the license within the time frames established by this section shall be deemed to constitute an approval. H. Each sexually oriented business performer license, other than the temporary license described in section 9.13.140, shall expire one (1) year from the date of issuance and may be renewed only by filing with the Chief of Police a written request for renewal, accompanied by the annual license fee and a copy of the license to be renewed. If said application conforms to the previously approved application and there has been no change with respect to the license holder being convicted of any crime classified by this or any other state as a sex related offense, the chief or police or his/her designee shall renew the license for one (1) year. Any plea to or conviction of a sex related offense requires the renewal application to be set for hearing before the Chief of Police in accordance with the provisions of this section. The request for renewal shall be made at least thirty (30) days before the expiration date of the license. Applications for renewal shall be acted upon as provided herein for action upon applications for license. The chief of police's denial of a renewal application is subject to the hearing provisions of Municipal Code Section 9.13.160. 9.13.160 Revocation/suspension/denial of sexually oriented business performer license. A. On determining that grounds for denial of a license, license revocation or suspension exist, the Chief of Police or his/her designee shall furnish written notice of the proposed action to the applicant/license holder. Such notice shall set forth the time and place of a hearing before the City Manager or a designated hearing officer and the ground or grounds upon which the hearing is based, the pertinent Chula Vista Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant/license holder, or shall be delivered to the license holder personally, at least ten (10) days prior to the hearing date. B. On determining that grounds for denial of a license exist, the Chief of Police shall furnish written notice of the proposed action to the applicant/license holder. The decision of the Chief of Police shall be appealable to the City Manager by filing a written request for a hearing with the City Clerk within fifteen (15) days following the day of mailing of the Chief of Police 's decision and paying the fee for appeals provided under this code. All such appeals shall be filed 35 1-43 with the City Clerk and shall be public records. The City Manager shall issue a notice which shall set forth the time and place of a hearing before the City Manager or a designated hearing officer which is within thirty (30) days from the date the appeal was filed and the ground or grounds upon which the hearing is based, the pertinent Chula Vista Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant/license holder, or shall be delivered to the license holder personally, at least ten (10) days prior to the hearing date. C. The applicant shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The City Manager or designated hearing officer shall not be bound by the formal rules of evidence. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness at the request of the license holder. Extensions of time or continuances sought by a license holder/appellant shall not be considered delay on the part of the city or constitute failure by the City to provide for prompt decisions on license suspensions or revocations. D. A license may be revoked, based on any of the following causes arising from the acts or omissions of the license holder: 1. The license holder has made any false, misleading, or fraudulent statement of material fact in the application for a performer license. 2. The license holder has pled guilty, nolo contendere or been convicted of a specified criminal activity. 3. Failure to comply with the requirements of this Chapter. E. After holding the hearing in accordance with the provisions of this section, if the City Manager or designated hearing officer finds and determines that there are grounds for revocation or suspension, the City Manager or designated hearing officer shall revoke or suspend the license. After holding the hearing in accordance with the provisions of this section on the denial of a license, the City Manager or designated hearing officer shall decide to sustain the decision, modify the decision or order the decision stricken and issue such order as the City Manager or designated hearing officer finds is supported by the entire record. The City Manager or designated hearing officer shall render a written decision that shall be hand delivered or overnight mailed to the applicant/license holder within four (4) business days of the hearing. The City Manager or designated hearing officer's failure to render such a decision within this time frame shall constitute an approval or reinstatement of the license. F. In the event a license is revoked pursuant to this section, another sexually oriented business performer license shall not be granted to the license holder within twelve (12) months after the date of such revocation. G. The decision of the City Manager or designated hearing officer shall be final. H. The time for a court challenge to a decision of the City Manager or designated hearing officer is governed by California Code of Civil Procedure § 1094.8. 36 1-44 I. Notice of the City Manager's or designated hearing officer's decision and his/her findings shall include citation to California Code of Civil Procedure § 1094.8. J. Any applicant or license holder whose license has been denied, suspended, or revoked, pursuant to this section shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure § 1094.8. 9.13.170 Display of license identification cards. The Chief of Police shall provide each performer/adult cabaret dancer required to have a license pursuant to this Chapter with an identification card containing the name, address, photograph, and license number of such performer/adult cabaret dancer. Every performer/adult cabaret dancer shall have such card available for inspection at all times during which he or she is on the premises of the sexually oriented business at which he or she performs. 9.13.180 Sexually oriented business performer license nontransferable. No sexually oriented business performer license maybe sold, transferred, or assigned by any license holder or by operation of law, to any other person, group, partnership, corporation, or any other entity. Any such sale, transfer, or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the sexually oriented business performer license, and the license thereafter shall be null and void. 9.13.190 Violations. A. Any license holder violating or causing the violation of any of these provisions regulating sexually oriented business performer licenses shall be subject to license revocation/suspension pursuant to section 9.13.160 above, a fine of not more than one thousand dollars ($1,000.00) pursuant to Government Code §§ 36900 and 36901, and any and all other civil remedies. All remedies provided herein shall be cumulative and not exclusive. Any violation of these provisions shall constitute a separate violation for each and every day during which such violation is committed or continued. B. In addition to the remedies set forth in section 9.13.160, any violation of any of these provisions regulating sexually oriented business performer licenses is hereby declared to constitute a public nuisance and may be abated or enjoined. C. The restrictions imposed pursuant to this section are part of a regulatory licensing process, and do not constitute a criminal offense. Notwithstanding any other provision of the Chula Vista Municipal Code, the City does not impose a criminal penalty for violations of the provisions of this ordinance related to sexual conduct or activities. 9.13.200 Sexually oriented business non-performer license. A. No individual who works as anon-performer in a managerial position in a sexually oriented business shall be employed, hired, engaged, or otherwise retained in a sexually oriented business without first obtaining a sexually oriented business non-performer license. 37 1-45 B. Individuals who wish to work as non-performer managers in a sexually oriented business shall file a written, signed, and verified application or renewal application for a sexually oriented business non-performer license on a form provided by the Chief of Police. Such application shall contain the following information: 1. The applicant's legal name and all used aliases. 2. Date of birth. 3. Driver's license or identification number and state of issuance or other state identification which confirms the name of the applicant. 4. The license applicant's fingerprints on a Livescan form provided by the Chula Vista police department. Any fees for fingerprints shall be paid by the applicant. Fingerprints shall be taken within six (6) months of the date of application. 5. Whether the applicant has pled guilty or pled nolo contendere or been convicted of a specified criminal activity. 6. The name and address of the sexually oriented business where the applicant proposes to work as anon-performer in a managerial capacity. C. The information provided above in subsection B of this section which is personal, private, confidential or the disclosure of which could expose the applicant to the risk of harm will not be disclosed under the California Public Records Act. Such information includes, but is not limited to, the applicant's mailing address, date of birth, age, driver's license number and social security number. The City Council in adopting the application system set forth herein has determined in accordance with Government Code § 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this Chapter by ensuring that the applicant's privacy, confidentiality and/or security interests are protected. The City Clerk shall cause the above-mentioned information to be redacted from any copy of a completed application form made available to any member of the public. D. The Chief of Police or his/her designee must be available during normal working hours Monday through Friday to accept sexually oriented business non-performer applications. The Chief of Police or his/her designee shall determine if an application is complete within five (5) business days. If the Chief of Police determines that the application is incomplete, the Chief of Police shall immediately inform the applicant of such fact and the reasons therefore, including any additional information necessary to render the application complete. Upon receipt of a completed sexually oriented business non-performer application in which the applicant denies any conviction of a misdemeanor or felony constituting a specified criminal activity, the Chief of Police or his/her designee shall permit temporary employment of such applicant in a sexually oriented business that possesses a valid sexually oriented business regulatory license. 9.13.210 Investigation and action on sexually oriented business non-performer license application. 38 1-46 A. Upon submission of a completed sexually oriented business non-performer license application by an individual who wishes to work in a managerial position in a sexually oriented business, the Chief of Police or his/her designee shall immediately stamp the application "Received" and in conjunction with City staff, including members of the police department, shall promptly investigate the information contained in the application to determine whether the provisions of Section 9.1.3.200 are satisfied. B. Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The Chief of Police's determination of any violation of Section 9.13.200 or the existence of any of the grounds set forth in section F below shall be made within ten (10) business days from the date the application is filed with the Chief of Police. In the event the Chief of Police is unable to complete the investigation within ten (10) business days, he/she shall promptly notify the applicant. In no case shall the investigation exceed thirty (30) days. C. The Chief of Police shall render a written decision to grant or deny the non- performer license within the foregoing ten (10) day time period set forth in section B above. Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing ten (10) day period, or thirty (30) day period if extended pursuant to section B above, at the address provided by the applicant in the application. Notice of such decision shall also be mailed first class postage prepaid or hand delivered to the owner or management of the sexually oriented business(es) identified on the applicant's application. D. The Chief of Police shall grant the application for anon-performer license unless one or more of the grounds set forth in subsection E of this section is satisfied. E. The Chief of Police shall deny the application of anon-performer for a license to work in a managerial capacity at a sexually oriented business, or suspend or revoke an existing license, based on any of the following grounds: 1. The applicant/license holder has made a false, misleading, or fraudulent statement of material fact in the application for anon-performer license. 2. The applicant is under eighteen (18) years of age. 3. The sexually oriented business identified by the applicant is not authorized to operate as a business under the laws of the state or city and/or does not have a valid sexually oriented business regulatory license. 4. The applicant has pled guilty, or pled nolo contendere or been convicted of a specified criminal activity. 5. Failure to comply with the requirements of this Chapter. F. The Chief of Police shall notify the applicant as follows: 1. The Chief of Police shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. 39 1-47 2. If the application for anon-performer license is denied, the Chief of Police shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the applicant may appeal the denial to the City Manager. The City Manager or a designated hearing officer shall conduct a hearing as described in section 9.13.220. G. Failure of the Chief of Police or his/her designee to render a decision on the application within the time frames established by this section shall be deemed to constitute an approval of the non-performer license. H. Each license holder must annually renew his/her license with the Chief of Police or his/her designee by a written application for a license renewal. If said application conforms to the previously approved application and there has been no change with respect to the applicant having been convicted of any specified criminal activity, the Chief of Police or his/her designee shall renew the applicant's non-performer license for one (1) year. The renewal application shall be made at least thirty (30) days before the expiration date of the license._ Applications for renewal shall be acted upon as provided herein for action upon an initial application for anon- performer license. The Chief of Police's denial of a renewal application is subject to the hearing provisions of section 9.13.220. 9.13.220 Revocation/Suspension/Denial of sexually oriented business non-performer license. A. On determining that grounds exist to deny an original or renewal application for a non-performer license, or suspend or revoke an existing license, the Chief of Police or his/her designee shall furnish written notice of the proposed action to the applicant. Such notice shall set forth the time and place of a hearing before the City Manager or a designated hearing officer and the ground or grounds upon which the hearing is based, the pertinent Chula Vista Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant, or shall be delivered to the applicant personally, at least ten (10) days prior to the hearing date. B. The decision of the Chief of Police to deny, suspend or revoke anon-performer license shall be appealable to the City Manager by filing a written request for a hearing with the City Clerk within fifteen (15) days following the day of mailing of the Chief of Police's decision and paying the fee for appeals provided under this code. All such appeals shall be filed with the City Clerk and shall be public records. The City Manager shall issue a notice which shall set forth the time and place of a hearing before the City Manager or a designated hearing officer which is within thirty (30) days from the date the appeal was filed and the ground or grounds upon which the hearing is based, the pertinent Chula Vista Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant or shall be delivered to the applicant personally, at least ten (10) days prior to the hearing date. C. The applicant shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The City Manager or designated hearing officer shall not be bound by the formal rules of evidence. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a 40 1-48 witness at the request of the applicant. Extensions of time or continuances sought by an applicant/appellant shall not be considered delay on the part of the city or constitute failure by the City to provide for prompt decisions on denial of anon-performer license. D. After holding the hearing in accordance with the provisions of this section, if the City Manager or designated hearing officer finds and determines that there are grounds to deny or revoke anon-performer license, the City Manager or designated hearing officer shall deny or revoke the license. After holding the hearing in accordance with the provisions of this section on renewal of anon-performer license, the City Manager or designated hearing officer shall decide to sustain the decision, modify the decision or order the decision stricken and issue such order as the City Manager or designated hearing officer finds is supported by the entire record. The City Manager or designated hearing officer shall render a written decision that shall be hand delivered or overnight mailed to the applicant and any sexually oriented business that the applicant has identified on his/her application within four (4) working days of the hearing. The City Manager or designated hearing officer's failure to render such a decision within this time frame shall constitute approved renewal of the applicant's non-performer license. E. If an application is denied pursuant to this section, the applicant may reapply for managerial work with a sexually oriented business twelve (12) months after the date of such denial. F. The decision of the City Manager or designated hearing officer shall be final. 9.13.230 Severability. This Chapter and each section and provision of said Chapter hereunder, are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said Chapter, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. Should any procedural aspect of this Chapter be invalidated, such invalidation shall not affect the enforceability of the substantive aspects of this Chapter. SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) FINDINGS The City Council has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that this proposed activity is not a "Project" as defined under section 15378 of the State CEQA Guidelines because it will not result in a physical change to the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the action proposed is not subject to CEQA. SECTION 5. REPEAL OF CHAPTER 9.22. Chapter 9.22 of the Chula Vista Municipal Code, entitled "Regulation of Sexually Explicit Material" is hereby repealed in its entirety. 41 1-49 SECTION 6. SEVERABILITY. If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application to any other person or circumstance. The City Council of the City of Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional. SECTION 7. EFFECTIVE DATE/LTRGENCY. This Urgency Ordinance shall be passed and adopted at one and the same meeting and shall become effective immediately. The reasons for this urgency are set forth in Paragraphs A- AA inclusive. PASSED, APPROVED AND ADOPTED at the special meeting of the City Council of the City of Chula Vista on the 1st day of November, 2012, by the following vote, to wit: AYES: NOES: ABSENT: Presented by: --~ len R. oogi torney Approved as to form by: len R: Googin rney 42 1-50 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA AMENDING THE CHULA VISTA MUNICIPAL CODE BY AMENDING CHAPTER 9.13 REGULATING THE LICENSING AND OPERATIONAL STANDARDS FOR SEXUALLY ORIENTED BUSINESSES AND REPEALING CHAPTER 9.22 WHEREAS, the City of Chula Vista has certain permitting provisions found in Chapter 9.13 for sexually oriented businesses that are in need of updating and refinement. The City Council takes legislative notice of the full complement of supporting evidence as to the secondary effects of sexually oriented businesses. Accordingly, the City makes the following findings and enactments. NOW THEREFORE, the City Council of the City of Chula Vista does ordain as follows: SECTION 1. FINDINGS. A. The City Council finds that it is necessary and appropriate to amend Chapter 9.13 to add, refine and update the provisions providing licensing and operational standards for adult businesses operating with the City of Chula Vista ("the City"). The public health, safety and welfare of the City and its residents require the enactment of this Ordinance and such operating standards for sexually oriented businesses in order to: (1) mitigate and reduce the judicially recognized potential adverse secondary effects of sexually oriented businesses, including but not limited to crime, the prevention of blight in neighborhoods and the increased threat of the spread of sexually transmitted diseases; (2) protect the quality of life and neighborhoods in the City, the City's retail and commercial trade, and local property values, and minimize the potential for nuisances related to the operation of sexually oriented businesses; and (3) protect the peace, welfare and privacy of persons who own, operate and/or patronize sexually oriented businesses. B. The City Council finds that the revisions to the City's Municipal Code implemented by this Ordinance are necessary in order to respond to recent developments within the regulation of adult uses and case law and in order to preserve the City from the potential adverse secondary effects of sexually oriented businesses, including crime, the protection of the City's retail trade, maintenance of property values, protecting and preserving the quality of the City's neighborhoods and the City's commercial districts, the protection of the City's quality of life, and the increased threat of the spread of sexually transmitted diseases and the protection of the peace, welfare and privacy of persons who patronize adult businesses based on the referenced studies and the findings set forth in Paragraphs A-AA. Specifically, the revisions and amendments to Municipal Code Chapter 9.13 included in this Ordinance are essential and necessary to ensure the orderly implementation of adult use regulations within the City by amending and refining various permitting and operating provisions in the Municipal Code to improve the City's regulation of sexually. oriented businesses, and thereby ensure the immediate preservation of the public peace, health, safety and general welfare in the City of Chula Vista. 1 1 _51 ATTACHMENT 2 C. On November 1, 2012, the City Council held a public meeting during which it considered the adoption of this Ordinance pursuant to California Government Code § 36937 and the Chula Vista Charter § 311. D. The City Council, in adopting this ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Sexually-Oriented Businesses in other cities: Austin, Texas (1986); Indianapolis, Indiana (1984); Garden Grove, California (1991); Seattle, Washington (1989); Houston, Texas (1997); Phoenix, Arizona (1979); Tucson, Arizona (1990); Chattanooga, Tennessee (2003); Los Angeles, California (1977); Whittier, California (1978); Spokane, Washington (2001); St. Cloud, Minnesota (1994); Littleton, Colorado (2004); Oklahoma City, Oklahoma (1986); Dallas, Texas (1997 and 2007); Ft. Worth, Texas (2004); Kennedale, Texas (2005); Greensboro, North Carolina (2003); Amarillo, Texas (1977); Cleveland, Ohio (1977); Newport News, Virginia (1996); Jackson County, Missouri (2008); Louisville, Kentucky (2004); New York, New York Times Square (1994); Beaumont Texas (1982); the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota); Dallas, Texas (2007); "Rural Hotspots: The Case of Adult Businesses," 19 Criminal Justice Policy Review 153 (2008); "Correlates of Current Transactional Sex among a Sample of Female Exotic Dancers in Baltimore, MD," Journal of Urban Health (2011); "Stripclubs According to Strippers: Exposing Workplace Sexual Violence," by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota; A Methodological Critique of the Linz-Paul Report: A Report to the San Diego City Attorney's Office (2003); Sexually Oriented Businesses: An Insider's View -Testimony of David Sherman before the Michigan House Committee on Ethics and Constitutional Law (2000); Closin' Time: Effective Regulation of Adult Businesses' Hours of Operation, by Scott Bergthold (2000); Summaries of Key Reports Concerning the Negative Secondary Effects of Sexually Oriented Businesses, by Louis Comus III (2001); Peep Show Establishments, Police Activity, Public Place and Time: A Study of Secondary Effects in San Diego, California, by Daniel Linz et al. (2006); and Do Peep-shows "Cause" Crime? A response to Linz, Paul, and Yao, by Richard McCleary et al. (2006), The City Council finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of sexually oriented businesses, and more specifically finds that these studies provide convincing evidence that: 1. Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, traffic, noise, and sexual assault and exploitation. 2. The studies from other cities establish by convincing evidence that sexually oriented businesses that are not regulated with operating standards often have a deleterious effect on nearby businesses and residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values. Regulations for sexually oriented businesses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than waiting for problems to be created. 2 1-52 E. In developing this ordinance, the City Council is mindful of legal principles relating to regulation of sexually oriented businesses, and the City Council does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of sexually oriented businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of sexually oriented businesses including, but not limited to: City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Erie v. Pap'sA.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue, 409 U.S. 109 (1972); N. Y. State Liquor Authority v. Bellanca, 452 U.S. 714 (1981); Sewell v. Georgia, 435 U.S. 982 (1978); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); City of Dallas v. Stanglin, 490 U.S. 19 (1989); and 1. The City Council has also considered and takes legislative notice of decisions of the Ninth Circuit Court of Appeals cases addressing sexually oriented businesses including but not limited to: Alameda Books, Inc. v. City of Los Angeles, 631 F.3d 1031 (9th Cir. 2011); Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th Cir. 2007); Tollis, Inc. v. County of San Diego, 505 F.3d 935 (9th Cir. 2007); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 274; World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Dream Palace v. County ofMaricopa, 384 F.3d 990 (9th Cir. 2004); Talk of the Town v. Department of Finance and Business Services, 343 F.3d 1063 (9th Cir. 2003); Center For Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Deja Vu-Everett-Federal Way, Inc. v. City of Federal Way, 46 Fed.Appx. 409 (9th Cir. 2002); Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001); Isbell v. City of San Diego, 258 F.3d 1108 (9th Cir. 2001); Isbell v. City of San Diego, 450 F.Supp.2d 1143 (S.D. Cal. 2006); Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097 (9th Cir. 1998) (Baby Tam I); Baby Tam & Co. v. Las Vegas, 199 F.3d 1111 (9th Cir. 2000) (Baby Tam II); Baby Tam & Co. v. Las Vegas, 247 F.3d 1003 (9th Cir. 2001) (Baby Tam III); Diamond v. City of Taft, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531 U.S. 1072 (2001); L.J. Concepts, Inc. v. City of Phoenix, 215 F.3d 1333 (9th Cir. 2000); Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000), cert. denied 121 S.Ct. 1189 (2001); Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000), cert. denied 531 U.S. 1104 (2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053 (2000); North v. City of Gilroy, 78 F.3d 594 (9th Cir. 1996); Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir. 1996); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied 511 U.S. 1030 (1994); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); and Lydo Ent. v. Las Vegas, 745 F.2d 1211 (9th Cir. 1984). 2. The City Council has also considered and takes legislative notice of decisions from other Circuit Court of Appeals addressing sexually oriented businesses including the following: 3 1-53 Imaginary Images, Inc. v. Evans, 612 F.3d 736 (4th Cir. 2010); Doctor John's, Inc. v. City of Roy, 465 F.3d 1150 (10th Cir. 2006): LLEH, Inc. v. Wichita County, 289 F.3d 358 (5th Cir. 2002); Ocello v. Koster, 354 S.W.3d 187 (Mo. 2011); 84 Video/Newsstand, Inc. v. Santini, 455 Fed.Appx. 541 (6th Cir. Sept. 7, 2011); Flanigan 's Enters., Inc. v. Fulton County, 596 F.3d 1265 (11th Cir. 2010); Entm'tProds., Inc. v. Shelby County, 588 F.3d 372 (6th Cir. 2009); Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); SOB, Inc. v. County of Benton, 317 F.3d 856 (8th Cir. 2003); DiMa Corp. v. Town ofHallie, 185 F.3d 823 (7th Cir. 1999); Richland Bookman, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); Tee & Bee v. City of West Allis, 936 F.Supp. 1479 (E.D. Wis. 1996); National Amusements, Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995); Peek-a- Boo Lounge v. Manatee County, 630 F.3d 1346 (11th Cir. 2011); Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (1 lth Cir. 2007); H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006); G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003); Richland Bookman, Inc. v. Knox County, 555 F.3d 512 (6th Cir. 2009); TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705 (5th Cir. Tex. 1994); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jacksonville, 973 F.2d 1255 (5th Cir. 1992), cert. denied 507 U.S. 1030 (1993); International Eateries v. Broward County, 941 F.2d 1157 (11th Cir. 1991), cert. denied 503 U.S. 920 (1992); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986); N. W. Enterprises, Inc. v. City of Houston, 372 F.3d 333 (5th Cir. 2004); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); and N. W. Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5th Cir. 2003). 3. The City Council has also considered and takes legislative notice of decisions of State of California courts addressing sexually oriented businesses including: Madain v. City of Stanton, 185 Ca1.App.4th 1277 (2010); Krontz v. City of San Diego, 136 Ca1.App.4th 1126 (2006); Lacy Street Hospitality Service, Inc. v. City of Los Angeles, 125 Cal.App.4th 526 (2004); Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board and Renee Vicary, Real Party in Interest, 99 Ca1.App.4th 880 (2002); Tily B., Inc. v. City of Newport Beach, 69 Ca1.App.4th 1 (1998); Sundance Saloon, Inc. v. City of San Diego, 213 Ca1.App.3d 807 (1989); 7978 Corporation v. Pitches, 41 Ca1.App.3d 42 (1974); Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Cal.App.3d 980 (1985); E. WA.P., Inc. v. City of Los Angeles, 56 Ca1.App.4th 310 (1997); City of Vallejo v. Adult Books, 167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); City of National City v. Wiener, 3 Ca1.4th 832 (1992), cert. denied 510 U.S. 824; and People v. Superior Court (Lucero), 49 Ca1.3d 14 (1989). F. Each of the foregoing negative secondary effects constitutes a harm which the City has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the City's rationale for this Chapter, exists independent of any comparative analysis between sexually oriented and non- sexually oriented businesses. Additionally, the City's interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the City. The City finds that the cases and documentation relied on in this Chapter are reasonably believed to be relevant to said secondary effects. 4 1-54 G. The City Council also finds that locational criteria alone do not adequately protect the health, safety, and general welfare of the citizens of Chula Vista, and thus certain requirements with respect to the ownership, operation and licensing of sexually oriented businesses are in the public interest. In addition to the findings and studies conducted in other cities regarding increases in crime rates, decreases in property values and the blighting of areas in which such businesses are located, the City Council takes legislative notice of the following: (1) the facts recited in the case of Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), regarding how live adult entertainment results in secondary effects such as prostitution, drug dealing, and other law enforcement problems, and (2) the facts and holding of the case of Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 374, wherein the Ninth Circuit recognized that off stage performances by performers who also perform nude and/or semi-nude at an sexually oriented establishment can cause the same secondary effects as other activities documented in studies and case law regarding sexually oriented establishments, even if the performer is clothed and the establishment does not serve alcohol. - H. Relying on the following, the City finds that sexually oriented businesses in its community may lead to detrimental secondary effects including prostitution and engagement in unlawful sexual activity. The City bases this conclusion on the experiences of Chula Vista, as well as that of other California communities, such as La Habra and Arcadia, which the City has a reasonable basis to believe reflect the experiences of its own community, including numerous police reports and affidavits from those communities, and judicial decisions in the public record: 1. Evidence indicates that some dancers, models, entertainers, performers, and other persons who publicly perform specified sexual activities or publicly display specified anatomical areas in sexually oriented businesses (collectively referred to as "performers") have been found to engage in sexual activities with patrons of sexually oriented businesses on the site of the sexually oriented business. 2. Evidence has demonstrated that performers employed by sexually 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. Evidence indicates that performers at sexually oriented businesses have been found to engage in acts of prostitution with patrons of the establishment. 4. Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as locations for engaging in unlawful sexual activity. 5. As a result of the above, and the increase in incidents of HIV, AIDS, and hepatitis B, which are sexually transmitted or blood borne diseases, the City has a substantial interest in adopting regulations that will reduce the possibility for the occurrence of prostitution and unlawful sex acts at sexually oriented businesses in order to protect the health, safety, and well-being of its citizens. The City finds this is relevant to Chula Vista and the need to regulate the secondary effects of sexually oriented businesses within the community. 5 1-55 6. The public health, safety, welfare, and morals of all persons in the City must be protected by the establishment of standards to diminish the possibility of infection of contagious diseases. I. The City Council is cognizant of the specific danger from the sexually transmitted disease AIDS, which is currently irreversible and fatal. The City Council takes legislative notice of the HIV/AIDS Epidemiology Report 2010 ("HIV/AIDS Epidemiology Report") prepared by the Public Health Services division of the County of San Diego Health and Human Services Agency. According to the HIV/AIDS Epidemiology Report, 14,228 AIDS cases were reported throughout San Diego County since 1981 through December 2009, 328 of which were reported in 2009. The HIV/AIDS Epidemiology Report also indicates that San Diego County has the third highest number of AIDS cases in the state of California. The City also takes legislative notice of the County of Orange Communicable Disease Summary 2000, County of Orange Health Care Agency, issued July 2002 ("Communicable Disease Summary") and the HIV/AIDS Surveillance Statistics, 2003 also issued by the County of Orange Health-Care Agency in October 2004 ("HIV/AIDS Surveillance Study"). The HIV/AIDS Surveillance Study reports that 6,429 cases of AIDS were reported in Orange County between 1981 and 2003. Of those, 237 were reported in 2003 and 162 were also diagnosed in 2003. The HIV/AIDS Surveillance Study further indicates that according to the latest available data (as of December 2001), Orange County has reported more AIDS cases than 25 U.S. states and ranks 28th in number of AIDS cases reported among the 101 metropolitan areas recognized by the Centers for Disease Control and Prevention with 500,000 or more population. J. The City is also concerned with preventing the spread of other sexually transmitted diseases such as syphilis, gonorrhea and chlamydia and hepatitis B. The Communicable Disease Summary further indicates that between 1996 and 2000, 1,053 cases of syphilis were reported, 345 cases of acute hepatitis B were reported, and 18,948 cases of chlamydia were reported in Orange County. The City also takes legislative notice of the STD Fact Sheet of sexually transmitted diseases reported in San Diego County between 1994 and 2008, prepared by the County of San Diego Health and Human Services Agency ("STD Fact Sheet"). According to the STD Fact Sheet, 1,710 cases of syphilis were reported throughout the San Diego County between 1994 and 2008, 334 of which were reported in 2008. With respect to gonorrhea, 31,223 cases of gonorrhea were reported between 1994 and 2008, 2,018 of which were reported in 2008. The number of cases of chlamydia reported within San Diego County dramatically exceeds the number of reported cases of syphilis and gonorrhea: 137,096 cases were reported between 1994 and 2008, 14,074 of which were reported in 2008. It should also be noted that according to the AIDS Status Report, numerous studies have shown that sexually transmitted diseases such as syphilis, gonorrhea and chlamydia facilitate the transmission of HIV. The City Council has a reasonable basis to conclude that the experiences of San Diego and Orange Counties as to these HIV/AIDS and STD or blood borne diseases are relevant to the experiences of Chula Vista, which is located in the midst of this large urban area. K. In considering appropriate operational regulations for sexually oriented businesses, the City Council finds that: 6 1-56 1. Enclosed or concealed booths and dimly lit areas within sexually oriented businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmission of disease. Requiring all indoor areas to be open to view by management at all times and adequate lighting to be provided reduces the opportunity for, and therefore the incidence of illegal conduct within sexually oriented businesses, and further facilitates the inspection of the interior of the premises thereof by law enforcement personnel. 2. Preventing the exchange of money between performers and patrons also reduces the likelihood of drug and sex transactions occurring in sexually oriented businesses. 3. Requiring separations between performers and patrons precludes them from being within earshot to communicate and thereby reduces the likelihood that such persons will negotiate narcotics sales and/or transact sexual favors within the sexually oriented business. L. The City Council recognizes and relies on the findings set forth in the 1986 Attorney General's Report on Pornography in support of this ordinance including, but not limited to, its recommendations that local governments ban certain features of video booths that facilitate carnal sexual encounters. A copy of the Attorney General's Report on Pornography is available for public review at the city clerk's office. 1. With respect to booths, these findings include the following: The inside walls of the booth are typically covered with graffiti and messages, usually of a sexual nature and consisting of telephone numbers, names, requests and offers for sex acts, anatomical descriptions, and sketches. Some booths also contain a chart used as an appointment schedule that is utilized to schedule appointments for sex acts that take place in that particular booth. In some instances, this arrangement has been used for the solicitation of prostitutes. Many of these booths are equipped with a hole in the side wall between the booths to allow patrons to engage in anonymous sex including both oral and anal sex acts. Inside the booths, the floors and walls are often wet and sticky with liquid or viscous substances, including semen, urine, feces, used prophylactics, gels, saliva, or alcoholic beverages. The City concludes, based in part on the description of the illicit sexual activity as noted within the Attorney General's Report, that the presence of closed doors and/or any obstruction of the video booth area is likely to lead to the above described secondary effects. 2. Likewise, the City Council recognizes and relies on the findings set forth in the May 1990 study conducted by the City of Tucson in support of this ordinance including, but not limited to, the following findings with respect to booths: Holes were present in the walls of adjoining booths within sexually oriented entertainment establishments. These holes were used by male patrons to facilitate sex acts with the occupant of the neighboring booth. The Council reasonably believes that the Tucson experience, along with the Attorney General's Report, is relevant to the problems associated with sexually oriented facilities in Chula Vista. 3. The City Council finds that requiring that booths in sexually oriented establishments be configured in such a manner so that there is an unobstructed view from the manager's station(s) and prohibiting closed, concealed, or unobstructed booths that are occupied by no more than one person at a time reduces the secondary effects associated with closed booths. Specifically, the provisions pertaining to booths are necessary to eliminate the 7 1-57 masturbation and sexual activity that are known to occur in closed booths and which present significant health and safety concerns with respect to communicable diseases, including AIDS. A number of courts have held that combating the spread of AIDS and STDs is a significant government interest, and that prohibiting concealed or enclosed booths in a sexually oriented establishment is a narrowly tailored means of serving that interest. Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Ca1.App.3d 980 (1985); Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir. 2002); Mitchell v. Commission on Adult Entertainment Establishments, 10 F.3d 123 (3rd Cir. 1993); Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991); Doe v. City of Minneapolis, 898 F.2d 612 (8th Cir. 1990); Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165 (4th Cir. 1986). The City Council takes further note of the Ninth Circuit's decision in Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982) and its finding that there is no constitutional right to unobserved masturbation in a public place. The City Council also recognizes the California case Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Ca1.App.3d 980 (1985), which found that the right to privacy guaranteed by the California Constitution does not protect the right to unobserved masturbation in a public place. Further, the city takes note of the Eleventh Circuit's validation of a restriction on the size of booths in Lady J Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999), including the Court's finding that "[a]mple evidence ... supports the ... finding that illegal and unhealthy activities take place in small rooms at adult entertainment establishments." M. In recognition of the negative secondary effects generated by live sexually oriented entertainment, a number of courts have upheld distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and precluded direct exchange of monies between performers and patrons at sexually oriented businesses that provide live entertainment including, but not limited to: Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cert. denied 126 S.Ct. 374; Tily B. v. City of Newport Beach, 69 Ca1.App.4th 1 (1999); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); BSA, Inc. v. King County, 804 F.2d 1104 (9th Cir. 1986); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Parker v. Whitfield County, 463 S.E.2d 116 (Ga. 1995); and Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995). Courts have found that dancers who perform nude or semi-nude on stage at sexually oriented cabarets are the same individuals who then move off stage to offer lap dances, couch dances, or other similar off stage performances. Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005). Therefore, Chula Vista reasonably believes it is necessary to impose distance limitations between performers and patrons and prohibit physical contact between performers and patrons during all performances, whether on or off stage, in order to guard against the documented secondary effects. N. The City Council believes that prohibiting physical contact between performers and patrons at sexually oriented businesses, requiring separate entrances for performers from those used for patrons, requiring separate restrooms for opposite sexes, prohibiting performers from soliciting payment from patrons, and prohibiting the direct payment to performers by patrons are a reasonable and effective means of addressing the legitimate governmental interests of preventing prostitution, the spread of sexually transmitted diseases, and drug transactions. The case law and studies serve as a reasonable basis to establish this link. 8 1-58 O. In recognition of the negative secondary effects generated by live sexually oriented entertainment establishments, anumber of courts have upheld ordinances which require that employees, as well as the owners and managers of such establishments submit background information on criminal convictions related to relatively recent sexual offenses so that a public entity can assess an individual's ability to function responsibly in the sexually oriented business setting. See TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 710 (5th Cir. 1994); and see Club Southern Burlesque, Inc. v. City of Carrolton, 265 Ga. 528, 532, 457 S.E.2d 816 (1995). This includes not only the applicant for an sexually oriented business license, but individuals who work in sexually oriented businesses during regular business hours as performers and non- performers where the criminal background check is limited to a period of no more than five (5) years immediately preceding the date of application. See Doctor John's, Inc. v. City of Roy, 465 F.3d 1150, 1171 (10th Cir. 2006); McCrothers Corp. d/b/a Tree City Bar, et al. v. City of Madan, 728 N.W.2d 124 (2007); Tee & Bee v. City of West Allis, 936 F.Supp. 1479, 1487 (E.D. Wis. 1996); Club Southern Burlesque, Inc., 265 Ga. at 532. In this regard, the City Council, in adopting operational standards, recognizes that the requirement for employee disclosure of recent criminal activity is narrowly tailored and imposes no greater restriction on First Amendment freedoms than is necessary to minimize the secondary harms stated in the ordinance. See TK's Video v. Denton County, 830 F.Supp. 335, 343 (E.D. Tex. 1993), vac'd-in part on other grounds, 24 F.3d 705 (5th Cir. 1994). When, as here, the civil disability provision of a sexually oriented business ordinance is tailored to apply to sex-related crimes only, the "relationship between the offense and the evil to be regulated is direct and substantial." FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1305 (5th Cir. 1988) and affirmed in part and vacated in part in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); see also TK's Video, 24 F.3d at 711 and see Deja Vu of Nashville, Inc. v. Metro Gov't of Nashville and Davidson County, 274 F.3d at 392 (6th Cir. 2001); Brownell v. City of Rochester, 190 F. Supp.2d 472, 494-96 (W.D.N.Y. 2001); Tee & Bee, 936 F.Supp. at 1490. Chula Vista adopts the reasoning of courts finding that "Certain employees of unregulated sexually oriented businesses ...engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments" and has a reasonable basis to believe this reasoning is applicable in the Chula vista community. Further, the "fact that an applicant for an sexually oriented use permit has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this ordinance." Hence, "[t]he barring of such individuals from employment in sexually oriented businesses for a specified period of years serves to prevent distribution of illegal material, to prevent conduct which leads to the transmission of sexually transmitted diseases, and to preclude the establishment of criminal enterprises within the City." Dr. John's at 1171 n. 30. P. The City Council also finds the establishment of an sexually oriented business regulatory licensing process and operational standards for sexually oriented businesses are legitimate and reasonable means of ensuring that: the City's regulations; 2. business are mitigated; Operators of and performers at sexually oriented businesses comply with The recognized adverse secondary impacts of a proposed sexually oriented 9 1-59 3. Sexually oriented business operators have specific guidelines with respect to the manner in which they can operate a sexually oriented business; and 4. The applications for sexually oriented business regulatory licenses are handled fairly and expeditiously. Q. The City Council recognizes the possible harmful effects on children and minors exposed to the effects of sexually oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.). The City Council further takes legislative notice of the cases that recognize that protection of minors from sexually explicit materials is a compelling government interest, including Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Ca1.App.4th 1075 (1995). R. While the City Council is obligated to protect the rights conferred by the United States Constitution to sexually oriented businesses, it does so in a manner that ensures the continued and orderly use and development of property within the City and diminishes, to the greatest extent feasible, those undesirable adverse secondary effects which the above mentioned studies have shown to be associated with the operation of sexually oriented businesses. S. Licensing permits, locational restrictions and operating standards are a legitimate and reasonable means of ensuring that sexually oriented businesses are conducted in a manner so as to minimize their adverse secondary effects and to help assure that such operators, businesses, licensees and permittees comply with reasonable regulations related to such requirements to minimize and control problems associated with such businesses and thereby protect the health, safety, and welfare of Chula Vista residents, protect citizens from increased crime, preserve the quality of life, and preserve the character of surrounding neighborhoods and businesses, and deter the spread of urban blight. The zoning and operational requirements contained in this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected sexually oriented businesses in Chula Vista. T. The City Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication. For example, the closing hours requirement means that sexually oriented businesses are free to operate seven (7) days a week for twenty (20) hours per day. The City Council takes note of the proliferation of sexually oriented material on the Internet, satellite television, direct television, CDs, DVDs, and that these various media provide alternative avenues of communication. Additionally, the City Council takes note that numerous web-based services, such as www.sugardvd.com and www.wantedlist.com, deliver adult videos and DVDs directly to customers' homes via the mail. The City Council recognizes the following review of one of these web-based services: "SugarDVD has made it so easy to rent and view adult movies, you may never leave your house again ... SugarDVD is discreet with quick turnaround times and a massive selection ... SugarDVD offers six rental plans, catering to the casual porn viewer and diehards who can never get enough hard-core fare." (Hustler Magazine, January 2006.) The City Council also considers and relies on published decisions examining the proliferation of communications on the Internet. 10 1-60 (Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) [the principle channel through which many Americans now transmit and receive sexually explicit communication is the Internet]; Anheuser-Busch v. Schmoke, 101 F.3d 325 (4th Cir. 1996), cert. denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the Internet is one available channel of communication]; U. S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); see also U. S. v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 519 U.S. 820 [recognizing the Internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].) The Internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested persons in every community with a mere keystroke. Asexually oriented business no longer has to be "actually" physically located in a city to be available in the community. U. The City Council recognizes that adult devices (i.e. adult novelties and/or adult related products) such as dildos, fur-lined handcuffs, leather whips, anal beads, and devices that are physical representations of human genital organs, are not speech and enjoy no First Amendment protections. (See Ford v. State of Texas, 753 S.W.2d 451, 452-453 (1988); Sewell v. State of Georgia, 233 S.E.2d 187, 188-189 (1977); Chamblee Visuals, LLC v. City of Chamblee, 506 S.E.2d 113, 115 (1998); and Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020 (5th Cir. 1981).) V. The City Council has also determined that a closing hours requirement promotes the reduction of deleterious secondary effects from sexually oriented facilities and reasonably relies on prior court decisions on the need for closing hours including Center for Fair Public Policy v. Maricopa County ("Maricopa"), 336 F.3d 1153 (9th Cir. 2003); DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir. 1999); Lady J. Lingerie, Inc. v. City of.Iacksonville, 176 F.3d 1358 (11th Cir. 1999); Lady J. Lingerie, Inc. v. City of Jacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997); Richland Bookman, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); National Amusements Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995); Mitchell v.. Comm'n on Adult Enter. Est. of the State of Delaware, 10 F.3d 123 (3rd Cir. 1993); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995). The City Council also takes legislative notice of (a) the Report of the Attorney General's Working Group on the Regulation of Sexually-Oriented Businesses, Minnesota (1989), which concluded that surrounding communities are negatively impacted by 24-hour-a-day or late night operation of sexually oriented businesses; and (b) the analysis presented by Scott Bergthold in his report, Closin' Time: Effective Regulation of Adult Businesses' Hours of Operation (2000). Additionally, the City Council takes legislative notice of Peep Show Establishments, Police Activity, Public Place and Time: A Study of Secondary Effects in San Diego, California, by Daniel Linz et al. (2004) and Do Peep-shows "Cause" Crime? A response to Linz, Paul, and Yao, by Richard McCleary et al. (2006). Based on these cases, reports and analyses, as well as the findings of this ordinance, the City Council has a reasonable basis to believe and does conclude that the hours of operation provision is necessary in light of the fact that sexually oriented businesses have been found to accompany and aggravate crime and to deplete police time and resources in the late night and early morning hours. W. It is not the intent of the City Council of Chula Vista in enacting this ordinance or any provision thereof to condone or legitimize the distribution of obscene material, and the City 11 1-61 and its Council recognize that state law prohibits the distribution of obscene materials and expect and encourage law enforcement officials to enforce state obscenity statutes against such illegal activities in Chula Vista. X. The City Council does not intend to regulate in any area preempted by California law including, but not limited to, regulation of obscene speech, nor is it the intent of the City Council to preempt regulations of the state Alcoholic Beverage Control Department ("ABC"). Y. Nothing in this ordinance is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any other City ordinance in any respect, or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof. Z. The City Council finds that licensing and operational standards are a legitimate and reasonable means of accountability to ensure that operators and performers and non- performers employed at sexually oriented facilities comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation. AA. The licensing and operation provisions adopted herein are necessary in order to protect the public health, safety and welfare by providing a mechanism to address the adverse secondary effects associated with the establishment and operation of unregulated or under-regulated sexually oriented businesses. SECTION 2. AMENDMENT OF MUNICIPAL CODE CHAPTER 9.13 (LIVE ENTERTAINMENT LICENSING AND REGULATIONS). Chapter 9.13 of the Chula Vista Municipal Code, entitled "Live Entertainment Licensing and Regulations" is hereby repealed in its entirety and amended in its entirety to read as follows: CHAPTER 9.13 SEXUALLY ORIENTED BUSINESSES AND SEXUALLY ORIENTED LICENSING FOR DESIGNATED INDIVIDUALS Sections: 9.13.010. Purpose. 9.13.020. Definitions. 9.13.030. License required. 9.13.040. Issuance of license. 9.13.050. Inspection. 9.13.060. Intentionally omitted. 9.13.070. Suspension or revocation of a sexually oriented business license. 9.13.080. Appeal procedures. 9.13.090. Transfer of sexually oriented regulatory license. 9.13.100. Operating standards. 9.13.110. Violations. 12 1-62 9.13.120. Applicability of Chapter to existing businesses. 9.13.130. Regulations non-exclusive. 9.13.010 Purpose. It is the purpose of this Chapter to regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the City. The provisions of this Chapter have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this Chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. 9.13.020 Definitions. For purposes of this Chapter, the words and phrases defined in the sections hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context. A. "Adult arcade" shall mean a business establishment to which the public is permitted or invited and where coin, card or slug operated or electronically, electrically or mechanically controlled devices, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing "specified sexual activities" or "specified anatomical areas." Such devices shall be referred to as "adult arcade devices." B. "Adult Bookstore" or "Adult Video Store" means a commercial establishment which, as a regular and substantial course of conduct offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas." C. "Adult booth/individual viewing area" shall mean a partitioned or partially enclosed portion of a sexually oriented business used for any of the following purposes: 1. Where a live or taped performance is presented or viewed, where the performances and/or images displayed or presented are distinguished or characterized by their emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas;" or 2. Where "adult arcade devices" are located. D. "Adult Cabaret" means a business establishment (whether or not serving alcoholic beverages) that features "adult live entertainment." 13 1-63 E. "Adult cabaret dancer" shall mean any person who is an employee of an "adult cabaret" who, with or without any compensation or other form of consideration, performs live entertainment and whose performance on a regular and substantial basis focuses on or emphasizes the adult cabaret dancer's breasts, genitals, and/or buttocks, but does not involve exposure of "specified anatomical areas" or depicting or engaging in "specified sexual activities." "Adult cabaret dancer" does not include a patron. F. "Adult hotel/motel" shall mean a "hotel" or "motel" (as defined in the Municipal Code) that is used for presenting on a regular and substantial basis images through closed circuit television, cable television, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices that are distinguished or characterized by the emphasis on matter depicting or describing or relating to "specified sexual activities" or "specified anatomical areas." G. "Adult live entertainment" shall mean any physical human body activity, whether performed or engaged in, alone or with other persons including, but not limited to, singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, in which: (1) the performer (including, but not limited to, topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar performers) exposes to public view, without opaque covering, "specified anatomical areas;" and/or (2) the performance or physical human body activity depicts, describes, or relates to "specified sexual activities" whether or not the specified anatomical areas are covered. H. "Adult Model Studio" means a business establishment which provides for any form of consideration, the services of a live human model, who, for the purposes of sexual stimulation of patrons, displays "specified anatomical areas" to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying for such services. "Adult model studio" does not include schools maintained pursuant to standards set by the Board of Education of the State of California including the following: 1. A college, junior college, or university supported entirely or partly by taxation; or 2. By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation. I. "Adult motion picture theater" means a commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas" are regularly shown to more than five persons for any form of consideration. J. "Adult oriented material" shall mean accessories, paraphernalia, books, magazines, laser discs, compact discs, digital video discs, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to 14 1-64 "specified sexual activities" or "specified anatomical areas." "Adult oriented material" shall include "sexually oriented merchandise." K. "Adult retail store" shall mean a business establishment having as a regular and substantial portion of its stock in trade, "sexually oriented material." L. "Characterized by" means describing the essential character or quality of an item. As applied in this Chapter, no business shall be classified as a sexually oriented business by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America. M. "City" means the City of Chula Vista, California. M. "Employee" describes and pertains to any person who performs any service on the premises of a sexually oriented business, on a full time, part time, or contract basis, regardless of whether the person is denominated an employee, independent contractor, agent, lessee, or otherwise. Employees shall include "cabaret dancers," "performers" and "non-performers." Employee does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises. O. "Establish" or "Establishment" means and includes any of the following: 1. The opening or commencement of any sexually oriented business as a new business; 2. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; 3. The addition of any sexually oriented business to any other existing sexually oriented business; 4. The relocation of any "sexually oriented business;" or 5. Physical changes that expand the square footage of an existing "sexually oriented business" by more than ten percent (10%). P. "Floor space" means the floor area inside an establishment that is visible or accessible to patrons for any reason, excluding restrooms. Q. "Influential interest" in a sexually oriented business means any of the following: (1) the actual power to operate the sexually oriented business or control the operation, management or policies of the sexually oriented business or any legal entity which operates the sexually oriented business (an "operator" is deemed to have an influential interest in the sexually oriented business); (2) possession or control of any right, title or interest in or to ten percent (10%) or more of the ownership of a sexually oriented business or of any legal entity with ownership or management authority of a sexually oriented business, including any security interest therein with rights of ownership or management authority upon default; or (3) holding an office (e.g., president, vice president, secretary, treasurer, managing member, managing director, 15 7 -65 etc.) in a legal entity which operates or has a ten percent (10%) or more ownership interest in the sexually oriented business. R. "Licensee" means a person in whose name a regulatory license to operate a sexually oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for a sexually oriented business regulatory license. S. "Non performer" shall mean a person who is an employee of a sexually oriented business, but does not satisfy the definition of a "performer," who works in the sexually oriented business during regular business hours. This shall not include after hours workers providing janitorial, trash or similar after hours services. T. "Operator" means any person on the premises of a sexually oriented business who manages, supervises, or controls the business or a portion thereof. A person may be found to be an operator regardless of whether such person is an owner, part own_ er, or licensee of the business. U. "Performer" shall mean a person who is an employee of an adult business or any other person who, with or without any compensation or other form of consideration, provides "adult live entertainment" for patrons of a "sexually oriented business." V. "Person" means an individual, proprietorship, partnership, corporation, association, or other legal entity. W. "Premises" means the real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for a sexually oriented business regulatory license. X. "Sexually oriented business" means: 1. A business establishment or concern that as a regular and substantial course of conduct operates as an "adult bookstore or adult video store," "adult cabaret," "adult motion picture theater," "adult model studio," "adult retail store," adult arcade," or "adult motel or hotel." 2. A business establishment or concern which as a regular and substantial course of conduct offers, sells or distributes "sexually oriented material" or "sexually oriented merchandise," or which offers to its patrons materials, products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas" but not including those uses or activities which are preempted by state law. Y. "Sexually oriented merchandise" shall mean sexually oriented implements, paraphernalia, or novelty items such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed 16 1-66 primarily for the stimulation of human genital organs or sado-masochistic activity or distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." Z. "Specified Anatomical Areas" means and includes: 1. Less than completely and opaquely covered: human genitals; pubic region; buttock; and female breast below a point immediately above the top of the areola; and 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. AA. "Specified Criminal Activity" means any of the following specified crimes for which less than two (2) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) less than five (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five (5) years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period. 1. Rape offenses set forth in California Penal Code § 261; 2. Pimping or soliciting offenses set forth in California Penal Code § 266(h); Pandering offenses set forth in California Penal Code § 266(1); 4. Any offense described in California Penal Code § § 311 (311(a) Obscene Matter) and 313 (Harmful Matter); 5. Lewd, indecent, or obscene conduct offenses set forth in California Penal Code § § 314, 647a or 647d; 6. Gambling or prostitution offenses set forth in California Penal Code §§ 315, 316, 318 or 647b; 7. Sex offenses requiring registration under California Penal Code § 290; 8. Controlled substance offenses described in California Health and Safety Code §§ 11054, 11055, 11056, 11057, 11058, 11350, 11351, 11352, 11359, 11360, 11375, 11377, 11378, 11379, 11550 or 11590; or 9. Any offense in another jurisdiction that, had the predicate act(s) been committed in California, would have constituted any of the foregoing offenses. 17 1-67 BB. "Specified sexual activities "shall mean and include any of the following, irrespective of whether performed directly or indirectly through clothing or other covering: 1. Intentional presentation of human genitals in a state of sexual stimulation or arousal; and/or 2. Acts of human masturbation, sexual stimulation or arousal; and/or 3. Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; and/or 4. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, or bondage and/or restraints; and/or 5. Human excretion, urination, menstruation, vaginal or anal irrigation; and/or 6. Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast. CC. "Transfer of Ownership or Control" of a sexually oriented business means any of the following: The sale, lease, or sublease of the business; 2. The transfer of an interest which constitute an "influential interest" in the business, whether by sale, exchange, assignment, pledge or similar means; or The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business. 9.13.030 License required. A. All sexually oriented businesses are subject to the sexually oriented business regulatory license requirements of this Chapter as well as all other applicable ordinances of the City and laws of the State of California. It shall be unlawful for any person to establish, operate, engage in, conduct, or carry on any sexually oriented business within Chula Vista unless the person first obtains, and continues to maintain in full force and effect, a sexually oriented business regulatory license as herein required. Any occurrence of the "establishment" of a sexually oriented business as defined in this Chapter, shall require a new application for a sexually oriented business regulatory license. The sexually oriented business regulatory license shall be subject to the development and operational standards of this Chapter and the requirements of the zoning or other land use provisions applicable to where the facility is located. B. License applicants shall file a written, signed and verified application in person at the City's Development Services counter on a form provided by the City's Director of 18 1-68 Development Services or his or her designee ("the Director"). Such application shall contain the following information and be accompanied by the following documents: 1. If the license applicant is an individual, the individual shall state his or her legal name, including any aliases, and address, and shall submit satisfactory written proof that he or she is at least eighteen (18) years of age. 2. If the license applicant is a partnership, the partners shall state the partnership's complete name, address, the names of all partners, and whether the partnership is general or limited; and shall attach a copy of the partnership agreement, if any. 3. If the license 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 the State of California, the names and capacities of all officers and Directors, the name of the registered corporate agent, and the address of the registered office for service of process. 4. A signed and verified statement that the license applicant, if an individual, or if a partnership or corporation by its partners, its officers or its Directors, that the applicant has not pled guilty or nolo contendere or been convicted of specified criminal activities. 5. The license applicant shall provide a list of all non-performers, which includes the non-performer's legal name, and mailing address, and satisfactory written proof that each non-performer is at least eighteen (18) years of age. If the sexually oriented business regulatory license is granted, the licensee shall maintain this list with current and updated information and shall make this list available for inspection upon reasonable notice. 6. Each non-performer working in a managerial capacity shall provide the license applicant with a signed and verified statement that the non-performer has not pled guilty or pled nolo contendere or been convicted of a specified criminal activity. 7. Each person with an influential interest in the sexually oriented business or in a legal entity with an influential interest in the sexually oriented business shall sign the application for a license as an applicant. All persons who sign the application must also provide names, aliases, addresses, and date of birth. 8. If the license applicant intends to operate the sexually oriented business under a name other than that of the license applicant, the license applicant shall file the fictitious name of the sexually oriented business and show proof of registration of the fictitious name. 9. A description of the type of sexually oriented business for which the license is requested and the proposed address where the sexually oriented business will operate, plus the names and addresses of the owners and lessors of the sexually oriented business site. 10. The address to which notice of action on the application is to be mailed. 11. A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the sexually oriented business. The 19 1-69 sketch or diagram need not be professionally prepared but must be oriented to the north or some other designated street or object and 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. 12. A diagram of the off-street parking areas and entries to the premises of the sexually oriented business, also showing the location of the lighting system required by this Chapter. C. The completed application shall be accompanied by anon-refundable application fee. The amount of such fees shall be set by resolution of the City Council. D. The completeness of an application for a sexually oriented business regulatory license shall be determined by the Director or within five (5) City business days of its submittal. If the Director determines that the license application is incomplete, the Director shall immediately notify in writing the license applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Such writing shall be deposited in the U.S. mail, postage prepaid, immediately upon determination that the application is incomplete. Within five (5) City business days following the receipt of an amended application or supplemental information, the Director shall again determine whether the application is complete in accordance with the provisions set forth above. Evaluation and notification shall occur as provided herein until such time as the application is found to be complete. E. The fact that a license applicant possesses other types of state or city licenses does not exempt the license applicant from the requirement of obtaining a sexually oriented business regulatory license under this Chapter. 9.13.040 Issuance of license. A. Upon the filing of a completed application for a sexually oriented business regulatory license, the Director shall immediately write or stamp the application "Received" and, in conjunction with City staff, shall promptly investigate the information contained in the application to determine whether a sexually oriented business regulatory license shall be granted. Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application, nor is it grounds to extend the time period to conduct a hearing pursuant to this section. B. Within twenty-one (21) days after the filing of a completed sexually oriented regulatory permit application, the investigation shall be completed. The Director shall promptly notice a public hearing with notice of such hearing to be made pursuant to California Government Code §§ 65091 and 65905. Said public hearing shall be conducted within fifteen (15) days of the expiration of the completed investigation period. C. In reaching a decision on the application, the Director shall not be bound by the formal rules of evidence in the California Evidence Code. D. The Director shall issue the written decision on the application for a sexually oriented business regulatory license within four (4) City business days after the public hearing 20 1-70 required by this section. The failure of the Director to render any decision within the time frames established in any part of this section shall be deemed to constitute an approval, subject to compliance with all operational standards of Section 9.13.100 and all City zoning requirements, including those found in Section 19.58.024 of this Code, and shall be subject to appeal to the City Council, pursuant to Section 9.13.080. The decision of the Director shall be hand delivered or mailed to the applicant at the address provided in the application, and shall be provided in accordance with the requirements of this code. E. Notwithstanding any provisions in this section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this section or may request a continuance regarding any decision or consideration by the City of the pending application. Extensions of time sought by applicants shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on applications. F. The Director shall grant or deny the application in accordance with the provisions of this section, and so notify the applicant as follows: 1. The Director shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. 2. If the application is denied, the Director shall attach to the application a statement of the reasons for the denial. 3. If the application is granted, the Director shall attach to the application a sexually oriented business regulatory license. G. The Director shall grant the application and issue the sexually oriented business regulatory license upon findings that the proposed business meets, or will meet, all of the development and operational standards and requirements of this Chapter, unless the application is denied based upon one or more of the criteria set forth in subsection (I) of this section. H. If the Director grants the application, the applicant may begin operating the sexually oriented business for which the license was sought, subject to strict compliance with the development and operational standards and requirements of this Chapter. The licensee shall post the license conspicuously in the premises of the sexually oriented business. I. The Director shall deny the application if the applicant fails to establish any of the following: 1. The sexually oriented business complies with the City's zoning requirements as to its underlying zoning designation and other locational requirements. 2. The sexually oriented business complies with the development, operational or performance standards found in this Chapter. 3. The license applicant is at least eighteen (18) years of age. 21 1-71 4. The required application fees have been paid. 5. The applicant as defined in Section 9.13.030 B.1-3 and each non- performer working in a managerial capacity has not pled guilty or pled nolo contendere or been convicted of a specified criminal activity. 6. The application complies with section 9.13.030. J. A permittee, applicant or substantially related entity wherein the new application is made by an individual or previous entity exercising management or oversight or control of the sexually oriented business, cannot re-apply for a sexually oriented business regulatory license for a particular location within one (1) year from the date of prior denial. K. Any affected person may appeal the decision of the Director in writing within ten (10) days in accordance with the provisions of Municipal Code § 9.13.080. 9.13.050 Inspection. Sexually oriented businesses and sexually oriented business employees shall permit City staff and/or its agents to inspect, from time to time, the portions of the sexually oriented business premises where patrons are permitted, for the purpose of ensuring compliance with the specific regulations of this Chapter. 9.13.060 Intentionally omitted. 9.13.070 Suspension or revocation of a sexually oriented business license. A. On determining that grounds for license suspension or revocation exist, the Director shall furnish written notice of the proposed suspension or revocation to the licensee. Such notice shall set forth the time and place of a hearing and the ground or grounds upon which the hearing is based, the pertinent Municipal Code Sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the licensee, or shall be delivered to the licensee personally, at least ten (10) days prior to the hearing date. Hearings pursuant to this section shall be noticed in accordance with California Government Code §§ 65091 and 65905 and conducted by the Director or his/her designee which may include a third party hearing officer. Hearings pursuant to this section shall be conducted in accordance with procedures established by the Director but, at a minimum, shall include the following: 1. All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. 2. The Director shall not be bound by the formal rules of evidence. 3. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness at the request of the licensee. Extensions of time or continuances sought by a licensee shall not be considered delay on the part of the City or 22 1-72 constitute failure by the City to provide for prompt decisions on license suspensions or revocations. 4. The Director's decision may be appealed in accordance with Municipal Code § 9.13.080. B. A license may be suspended or revoked based on the following causes arising from the acts or omissions of the licensee, or an employee, partner, operator or manager of the licensee: 1. The building, structure, equipment, or location used by the sexually oriented business fails to comply with all provisions of these regulations and this section relating to sexually oriented businesses, including the sexually oriented business operational standards contained in section 9.13.100 and the zoning requirements of section 19.58.024, and all other applicable building, fire, electrical, plumbing, health, and zoning requirements of the Chula Vista Municipal Code. 2. The licensee has failed to obtain or maintain all required City licenses or permits with respect to the business or the premises. 3. The licensee has made any false, misleading, or fraudulent statement of material fact in the application for a sexually oriented business license. 4. The license is being used to conduct an activity different from that for which it was issued. 5. That an employee of the sexually oriented business has been convicted of two (2) or more specified criminal activities that occurred in or on the licensed premises within a twelve (12) month period and was employee of the sexually oriented business at the time the offenses were committed. 6. That the use for which the approval was granted has ceased to exist, has been suspended or has not been active for six (6) months or more. 7. That the transferee/new owner of a sexually oriented business or sexually oriented business regulatory license failed tb comply with the requirements of this Chapter. 8. The licensee, operator, or manager has knowingly allowed or permitted, or has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the sexually oriented business; or a licensee has been convicted of violating any of the following state laws on the premises of the sexually oriented business: a. Rape offenses set forth in California Penal Code § 261; 266(h); b. Pimping or soliciting offenses set forth in California Penal Code § c. Pandering offenses set forth in California Penal Code § 266(1); 23 1-73 d. Any offense described in California Penal Code §§ 311 (311(a) Obscene Matter) and 313 (Harmful Matter); Penal Code § 314; e. Lewd, indecent, or obscene conduct offenses set forth in California f. Gambling or prostitution offenses set forth in California Penal Code §§ 315, 316, 318 or 647b; 290; g. Sex offenses requiring registration under California Penal Code § h. Controlled substance offenses described in California Health and Safety Code §§ 11054, 11055, 11056, 11057, 11058, 11351 or 11590; or i. An act or omission in violation of any of the requirements of this Chapter if such act or omission is with the knowledge, authorization, or approval of the licensee or is as a result of the licensee's negligent supervision of the employees of the sexually oriented business. This includes the allowance of activities that are or become a public nuisance which includes the disruptive conduct of business patrons whether on or immediately off the premises where such patrons disturb the peace, obstruct traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property. The fact that any relevant conviction is being appealed shall have no effect on the revocation of the license, provided that, if any conviction which serves as a basis of a license revocation is overturned or reversed on appeal, that conviction shall be treated as null and of no effect for revocation purposes. C. After holding the hearing in accordance with the provisions of this section, if the Director finds and determines that there are grounds for suspension or revocation, the Director shall impose one of the following: months; or Suspension of the license for a specified period not to exceed six (6) 2. Revocation of the license. The Director shall render a written decision that shall be hand delivered or overnight mailed to the licensee within five (5) days of the public hearing. D. In the event a license is revoked pursuant to this section, another sexually oriented business regulatory license to operate a sexually oriented business shall not be granted to the licensee or an entity related to the licensee within twelve (12) months after the date of such revocation. 9.13.080 Appeal procedures. 24 1-74 A. After approval, denial, suspension or revocation of a license, any affected person may appeal the decision to the City Council in writing within ten (10) days after the written decision. B. Consideration of an appeal of the decision shall be at a public hearing, notice of which shall be given pursuant to California Government Code §§ 65091 and 65905 and which hearing shall occur within thirty (30) days of the filing or initiation of the appeal. C. The City Council action on the appeal of the decision shall be by a majority vote of the members present and upon the conclusion of the de novo public hearing, the City Council shall grant or deny the appeal. The City Council's decision shall be final and conclusive and shall be rendered in writing within four (4) City business days of the hearing, such written decision to be mailed to the party appealing the Director's decision. D. In reaching its decision, the City Council shall not be bound by the formal rules of evidence. E. Notwithstanding any provisions in this section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this section or may request a continuance regarding any decision or consideration by the City of the pending appeal. Extensions of time sought by applicants shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on applications. F. Failure of the City Council to render a decision to grant or deny an appeal of a license denial within the time frames established by this section shall be deemed to constitute an approval of the sexually oriented business regulatory license. G. The time for a court challenge to a decision of the City Council is governed by California Code of Civil Procedure § 1094.8. H. Notice of the City Council's decision and its findings shall include citation to California Code of Civil Procedure § 1094.8. I. Any applicant or licensee whose license has been denied pursuant to this section shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure § 1094.8. 9.13.090 Transfer of sexually oriented regulatory license. A. A license holder shall not operate a sexually oriented business under the authority of a sexually oriented business license at any place other than the address of the a sexually oriented business stated in the application for the license. B. In the event of a transfer of ownership of the sexually oriented business, the new owner shall be fully informed of the requirements of this chapter, including the operational and development standards herein. 25 1-75 C. In the event of a transfer of a sexually oriented business or the sexually oriented business license, the transferee shall complete an application for a sexually oriented business license and provide all information specified in Section 9.13.030 to the Director. The transferee shall be considered an applicant as provided in this chapter and the transfer shall only become effective if the proposed transferee satisfies the conditions set forth in Section 9.13.040. 9.13.100 Operating standards. A. Hours of operation. It shall be unlawful for any owner, operator, manager or employee of a sexually oriented business to allow such sexually oriented business to remain open for business, or to license any employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 2:00 a.m. and 6:00 a.m. of any day excepting here from an "adult hotel/motel." B. On-site manager. All sexually oriented businesses shall_have a responsible person who shall be at least 18 years of age and shall be on the premises to act as manager at all times during which the business is open. No performer may serve as the manager. The individual(s) designated as the on-site manager shall provide his/her name to the Chief of Police to receive all complaints and be given by the owner and/or operator the responsibility and duty to address and immediately resolve all violations taking place on the premises. An individual cannot serve as an on-site manager if he/she has pled guilty or pled nolo contendere or been convicted of a specified criminal activity. C. Interior of premises. No exterior door or window on the premises of a sexually oriented business shall be propped or kept open at any time while the business is open and any exterior windows shall be covered with opaque coverings at all times. D. Displays of sexually oriented materials. All displays of materials characterized or distinguished on matters describing or relating to "specified sexual activities" or "specified anatomical areas," as defined in this code, shall be completely screened from public view as viewed from adjacent sidewalks or public rights-of--way. E. Signs. All sexually oriented businesses shall comply with the following sign requirements, in addition to those provided elsewhere in this Code. Should a conflict exist between the requirements of other provisions of the Code and this subsection, the more restrictive shall prevail. If a sexually oriented business does not serve alcohol, it shall post a notice prior to entry to the area of public assembly and within ten feet (10') of every entrance used by customers for access to the establishment, stating that persons below the age of eighteen (18) years of age are prohibited from entering onto the premises or within the confines of the sexually oriented business. This notice shall be posted on a wall in a place of prominence. The dimensions of the notice shall be no less than six inches (6") by six inches (6"), with a minimum typeface of 25 points. If the sexually oriented business serves alcohol, it shall comply with all notice and posting requirements of the Alcoholic Beverage Control Department. F. Exterior lighting requirements. All exterior areas, including parking lots, of the sexually oriented business shall be illuminated at a minimum of 1.50 foot candle, maintained and 26 1-76 evenly distributed at ground level with appropriate devices to screen, deflect or diffuse the lighting in such manner as to prevent glare or reflected light from creating adverse impacts on adjoining and nearby public and private properties and to avoid night pollution. Inoperable and/or broken lights shall be replaced within twenty-four (24) hours. G. Interior lighting requirements. All interior areas of the sexually oriented business excepting therefrom adult hotels/motels shall be illuminated at a minimum of 1.00 foot candle, maintained and evenly distributed at floor level. Inoperable and/or broken lights shall be replaced within twenty-four (24) hours, excepting herefrom an adult hotel/motel. H. Regulation ofpublic restroom facilities. If the sexually oriented business provides restrooms for patron use, it shall provide separate restroom facilities for male and female patrons. The restrooms shall be free from sexually oriented material. Only one (1) person shall be allowed in each restroom at any time, unless otherwise required by law, in which case the sexually oriented business shall employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant shall insure that no person of the opposite sex is permitted into the restroom, and that not more than one (1) person is permitted to enter a restroom stall, unless otherwise required by law, and that the restroom facilities are used only for their intended sanitary purposes. Access to restrooms for patron use shall not require passage through an area used as a dressing area by performers. I. Trash. All interior trash cans shall be emptied into a single locked trash bin lined with a plastic bag or with individually bagged trash at least once a day. At least four (4) times a day, the front and rear exteriors of any sexually oriented business, along with the parking lot, shall be inspected for trash and debris and any trash and debris found shall be immediately removed and placed into a single locked trash bin lined with a plastic bag. J. Sexually oriented business offering adult live entertainment -additional operating requirements. The following additional requirements shall apply to sexually oriented businesses providing adult live entertainment: 1. No person shall perform adult live entertainment for patrons of a sexually oriented business except upon a permanently fixed stage at least eighteen inches (18") above the level of the floor, and surrounded with a three foot (3') high barrier or by a fixed rail at least thirty inches (30") in height. No patron shall be permitted on the stage while the stage is occupied by a performer(s) and/or adult cabaret dancer(s). This provision shall not apply to an individual viewing area where the performer is completely separated from the area in which the performer is viewed by an individual by a permanent, floor to ceiling, solid barrier. 2. No performer or adult cabaret dancer shall be within six feet (6') of a patron, measured horizontally, while the performer or adult cabaret dancer is performing adult live entertainment. While on stage, no performer or adult cabaret dancer shall have physical contact with any patron, and no patron shall have physical contact with any performer or adult cabaret dancer. 27 1-77 3. As to off stage performances, no performer or adult cabaret dancer shall perform "adult live entertainment" off stage. As to an adult cabaret dancer performing off stage, a distance of at least six feet (6') shall be maintained between the adult cabaret dancer and the patron(s) at all times. During off stage performances, no adult cabaret dancer shall have physical contact with any patron, and no patron shall have physical contact with any adult cabaret dancer. 4. In addition, while on the premises, no performer or adult cabaret dancer shall have physical contact with a patron and no patron shall have physical contact with a performer or adult cabaret dancer, which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the buttocks, perineum, anal region, or female breast with any part or area of any other person's body either before or after any adult live entertainment or off stage performances by such performer or adult cabaret dancer. Patrons shall be advised of the no touching requirements by signs and, if necessary, by employees of the establishment. This prohibition does not extend to incidental touching. 5. Patrons shall be advised of the separation and no touching requirements by signs conspicuously displayed and placed on the barrier between patrons and performers and utilizing red or black printing of letters not less than one inch (1") in size. And, if necessary, patrons shall also be advised of the separation and no touching requirements by employees of the establishment. 6. All employees of the sexually oriented facility, except therefrom performers while performing on the fixed stage, while on or about the premises or tenant space, shall wear at a minimum an opaque covering which covers their specified anatomical areas. 7. Patrons shall not throw money to performers, place monies in the performers' costumes or otherwise place or throw monies on the stage. If patrons wish to pay or tip performers, payment or tips may be placed in containers. Patrons shall be advised of this requirement by signs conspicuously displayed and placed on the barrier between patrons and performers and utilizing red or black printing of letters not less than one inch (1") in size. If necessary, patrons shall also be advised of the tipping and gratuity requirements by employees of the sexually oriented business. 8. The sexually oriented business shall provide dressing rooms for performers, that are separated by gender and exclusively dedicated to the performers' use and which the performers shall use. Same gender performers may share a dressing room. Patrons shall not be permitted in dressing rooms. 9. The sexually oriented business shall provide an entrance/exit to the establishment for performers that is separate from the entrance/exit used by patrons, which the performers shall use at all times. 10. The sexually oriented business shall provide access for performers between the stage and the dressing rooms that is completely separated from the patrons. If such separate access is not physically feasible, the sexually oriented business shall provide a minimum three foot (3') wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers capable of (and which 28 1-78 actually results in) preventing any physical contact between patrons and performers and the patrons must also be three feet (3') away from the walk aisle. Nothing in this section is intended to exempt the sexually oriented business from compliance with the provisions of Title 24 of the California Code of Regulations pertaining to handicapped accessibility. 11. All sexually oriented businesses featuring live entertainment shall employ security guards in order to maintain the public peace and safety, based upon the following standards: a. Provide at least one security guard at all times while the business is open. b. If the occupancy limit of the premises is greater than 21 persons, an additional security guard shall be on duty. c. Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of these regulations. Security guard(s) 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 and bonded 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. d. Between the hours of 8:00 p.m. and thirty (30) minutes after the established closing time of the facility, security guard(s) shall regularly patrol the parking lot and adjacent outdoor areas of the facility to maintain order therein and prevent any illicit or nuisance activity. e. Security guard(s) shall be regularly posted at the doors used by the performers when said doors are in use. f. The sexually oriented business shall provide a security system that visually records and monitors all parking lot areas as well as all entrances and exits to or from the facility. The recordings shall have sufficient definition fidelity to allow for identification of persons entering or exiting the premises. These recordings shall be retained on site for 30 days and shall be made available within 24 hours if requested by a member of the City police department or other police officer for a legitimate law enforcement purpose. K. Adult motion picture theater additional operating requirements. The following additional requirements shall apply to adult motion picture theaters: 1. If the theater contains a hall or auditorium area, the area shall comply with each of the following provisions: a. Have individual, separate seats, not couches, benches, or the like, to accommodate the maximum number of persons who may occupy the hall or auditorium area; 29 1-79 b. Have a continuous main aisle alongside the seating areas in order that each person seated in the hall or auditorium area shall be visible from the aisle at all times; and c. Have a sign posted in a conspicuous place at or near each entrance to the hall or auditorium area which lists the maximum number of persons who may occupy the hall or auditorium area, which number shall not exceed the number of seats within the hall or auditorium area. L. Employment of and services rendered to persons under the age of eighteen (18) years prohibited; twenty-one (21) if liquor is served. 1. Employees. Employees of a sexually oriented business must be at least eighteen (18) years of age. It shall be unlawful for any person with influential interest, manager or other person in charge of any sexually oriented business to employ, contract with, or otherwise retain any services in connection with the sexually oriented business with or from any person who is not at least eighteen (18) years of age. If liquor is served at the sexually oriented business, employees of the sexually oriented business must be at least twenty-one (21) years of age. If liquor is served at the sexually oriented business, it shall be unlawful for any person with influential interest, manager or other person in charge of any sexually oriented business to employ, contract with, or otherwise retain any services in connection with the sexually oriented business with or from any person who is not at least twenty-one (21) years of age. And said persons shall exercise reasonable care in ascertaining the true age of persons seeking to contract with, be employed by, or otherwise service the sexually oriented business. 2. Patrons. Patrons of a sexually oriented business must be at least eighteen (18) years of age. It shall be unlawful for any person with influential interest, manager or other person in charge of any sexually oriented business to permit to enter or remain within the sexually oriented business any person who is not at least eighteen (18) years of age. If liquor is served at the sexually oriented business, patrons must be at least twenty-one (21) years of age. If liquor is served at the sexually oriented business, it shall be unlawful for any person with influential interest, manager or other person in charge of any sexually oriented business to permit to enter or remain within the sexually oriented business any person who is not at least twenty-one (21) years of age. And said persons shall exercise reasonable care in ascertaining the true age of persons entering the sexually oriented business. 3. X-rated movies. The selling, renting and/or displaying of x-rated movies, videotapes, digital video discs (DVDs), compact discs CDs) and laser discs shall be restricted to persons over eighteen (18) years of age. If an establishment that is not otherwise prohibited from providing access to the establishment to persons under eighteen (18) years of age sells, rents, or displays movies, videos, DVDs, CDs or laser discs that have been rated "X" or rated "NC-17" by the motion picture rating industry ("MPAA"), or which have not been submitted to the MPAA for a rating, and which consist of images that are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas, said movies, videos, DVDs, CDs, and laser discs shall be located in a specific section of the establishment where these items are not visible to persons under the age of eighteen (18) and from which persons under the age of eighteen (18) shall be prohibited. 30 1-80 9.13.110 Violations. A. Any owner, operator, manager, employee or independent contractor of a sexually oriented business violating or permitting, counseling, or assisting the violation of any of these provisions regulating sexually oriented businesses shall be subject to any and all civil remedies, including license revocation. All remedies provided herein shall be cumulative and not exclusive. Any violation of these provisions shall constitute a separate violation for each and every day during which such violation is committed or continued. B. In addition to the remedies set forth in section 9.13.110A, any sexually oriented business that is operating in violation of these provisions regulating sexually oriented businesses is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. C. The restrictions imposed pursuant to this section constitute a licensing process, and do not constitute a criminal offense. Notwithstanding any other provision of the Chula Vista Municipal Code, the City does not impose a criminal penalty for violations of the provisions of this ordinance related to sexual conduct or activities. 9.13.120 Applicability of Chapter to existing businesses. A. Licensing Requirements. Any sexually oriented businesses operating in the City prior to the effective date of this Chapter must apply for a license under this Chapter. B. Interior Configuration Requirements. Any preexisting sexually oriented business that is required to, but does not, have interior configurations or stages that meet at least the minimum requirements of section 9.13.100 shall have ninety (90) days from the effective date of this Chapter to conform its premises to said requirements. C. Other Requirements. Except as provided for in subsections 9.13.120(A.) and (B.), sexually oriented businesses shall comply with this Chapter on the date that it takes effect. 9.13.130 Regulations non-exclusive. The provisions of sections 9.13.010 to 9.13.120 of this Chapter regulating sexually oriented businesses are not intended to be ekclusive, and compliance therewith shall not excuse non-compliance with any other provisions of the Municipal Code and/or any other regulations pertaining to the operation of businesses as adopted by the City. SECTION 3. AMENDMENT OF CODE. Chapter 9.13 of the Chula Vista Municipal Code is further amended by adding the following sections titled "Sexually Oriented Business Performer License:" SEXUALLY ORIENTED BUSINESS PERFORMER LICENSE Sections: 31 1-81 9.13.140. Sexually oriented business performer license. 9.13.150. Investigation and action on application for sexually oriented business performer license. 9.13.160. Revocation/suspension/denial of sexually oriented business performer license. 9.13.170. Display of license identification cards. 9.13.180. Sexually oriented business performer license nontransferable. 9.13.190. Violations. 9.13.200. Sexually oriented business non-performer license. 9.13.210. Investigation and action on sexually oriented business non-performer license application. 9.13.220. Revocation/Suspension/Denial of sexually oriented business non-performer license. 9.13.230 Severability. 9.13.140 Sexually oriented business performer license. A. No performer/adult cabaret dancer shall be employed, hired, engaged, or otherwise retained in an adult business to participate in or give any live performance displaying "specified anatomical areas" or "specified sexual activities" without first having a valid sexually oriented business performer license issued by the City. B. The Chief of Police or his/her designee shall grant, deny, and renew sexually oriented business performer licenses in accordance with these regulations. C. License applicants shall file a written, signed, and verified application or renewal application on a form provided by the Chief of Police. Such application shall contain the following information: 1. The license applicant's legal name and any other names (including "stage names" and aliases) used by the applicant. 2. Principal place of residence. 3. Age, date and place of birth. 4. Height, weight, hair and eye color, and tattoo descriptions and locations. 5. Each present and/or proposed business address(es) and telephone number(s) of the establishments at which the applicant intends to work. 6. Driver's license or identification number and state of issuance. years of age. 7. Social security number. 8. Satisfactory written proof that the license applicant is a least eighteen (18) 32 1-82 9. The license applicant's fingerprints on a Livescan form provided by the Chula Vista police department and two color two by two inch photographs clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant. Fingerprints and photographs shall be taken within six (6) months of the date of application. 10. Whether the license applicant has pled guilty or nolo contendere or been convicted of a specified criminal activity. 11. If the application is made for the purpose of renewing a license, the license applicant shall attach a copy of the license to be renewed. D. The information provided above in subsection C of this section which is personal, private, confidential or the disclosure of which could expose the applicant to the risk of harm will not be disclosed under the California Public Records Act or the open government ordinance. Such information includes, but is not limited to, the applicant's residence address, telephone number, date of birth, age, driver's license and social security number. The City Council in adopting the application and licensing and/or permit system set forth herein has determined in accordance with Government Code § 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this Chapter by ensuring that the applicant's privacy, confidentiality or security interests are protected. The City Clerk shall cause the same to be redacted from any copy of a completed application form made available to any member of the public, the above-mentioned information. E. The completed application shall be accompanied by anon-refundable application fee and an annual license fee. The amount of such fees shall be as set forth in the schedule of fees established by resolution from time to time by the City Council. F. The completeness of an application shall be determined within 24 business hours. The Chief of Police or his/her designee must be available during normal working hours Monday through Friday to accept sexually oriented business performer applications. If the Chief of Police determines that the application is incomplete, the Chief of Police shall immediately inform the applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Upon receipt of a completed sexually oriented business performer application and payment of the license fee specified in Section E above, the Chief of Police shall immediately issue a temporary license which shall expire of its own accord ten (10) business days from the date of issuance and shall only be extended as provided in section 9.13.150. G. This temporary sexually oriented business performer license shall authorize a performer/adult cabaret dancer to commence performance at a sexually oriented business establishment that possesses a valid sexually oriented business regulatory license authorized to provide live entertainment. H. The fact that a license applicant possesses other types of state or city permits or licenses does not exempt the license applicant from the requirement of obtaining a sexually oriented business performer license. 33 1-83 9.13.150 Investigation and action on application for sexually oriented business performer license. A. Upon submission of a completed application, payment of license fees, and issuance of a temporary sexually oriented business performer license pursuant to section 9.13.140, the Chief of Police shall immediately stamp the application "Received" and in conjunction with City staff, including members of the police department, shall promptly investigate the information contained in the application to determine whether the license applicant should be issued a sexually oriented performer business performer license. B. Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The chief of police's decision to grant or deny the adult business performer license shall be made within ten (10) business days from the date the temporary license was issued and in no case shall the decision to grant or deny the license application be made after the expiration of the temporary license. In the event the Chief of Police is unable to complete the investigation within ten (10) business days, he/she shall promptly notify the license applicant and extend the temporary license for up to ten (10) additional business days. In no case shall the investigation exceed twenty (20) days, nor shall the decision to grant or deny the license application be made after the expiration of the temporary license. C. The Chief of Police shall render a written decision to grant or deny the license within the foregoing ten (10) day time period set forth in section 9.13.150(B). Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing ten (10) day period or twenty (20) day period if extended pursuant to section 9.13.150(B), at the address provided by the applicant in the application. D. The Chief of Police shall notify the applicant as follows: 1. The Chief of Police shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. 2. If the application is denied, the Chief of Police shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the license applicant may appeal the denial to the City Manager. The City Manager or a designated hearing officer shall conduct a hearing as described in section 9.13.160(B). 3. If the application is granted, the Chief of Police shall attach to the application an sexually oriented business performer license. 4. The application, as acted upon, and the license, if any, shall be placed in the United States mail, first class postage prepaid, or hand delivered, addressed to the license applicant at the residence address stated in the application in accordance with the time frames established herein. E. The Chief of Police shall grant the application and issue the license unless the application is denied based on one of the grounds set forth in subsection F of this section. 34 1-84 F. The Chief of Police shall deny the application based on any of the following grounds: 1. The license applicant has made false, misleading, or fraudulent statement of material fact in the application for an sexually oriented business performer license. 2. The license applicant is under eighteen (18) years of age. 3. The sexually oriented business performer license is to be used for performing in a business prohibited by laws of the state or city or a business that does not have a valid sexually oriented business regulatory license. 4. The license applicant, has pled guilty, nolo contendere or been convicted of a specified criminal activities. G. Failure of the Chief of Police to render a decision on the license within the time frames established by this section shall be deemed to constitute an approval. H. Each sexually oriented business performer license, other than the temporary license described in section 9.13.140, shall expire one (1) year from the date of issuance and may be renewed only by filing with the Chief of Police a written request for renewal, accompanied by the annual license fee and a copy of the license to be renewed. If said application conforms to the previously approved application and there has been no change with respect to the license holder being convicted of any crime classified by this or any other state as a sex related offense, the chief or police or his/her designee shall renew the license for one (1) year. Any plea to or conviction of a sex related offense requires the renewal application to be set for hearing before the Chief of Police in accordance with the provisions of this section. The request for renewal shall be made at least thirty (30) days before the expiration date of the license. Applications for renewal shall be acted upon as provided herein for action upon applications for license. The chief of police's denial of a renewal application is subject to the hearing provisions of Municipal Code Section 9.13.160. 9.13.160 Revocation/suspension/denial of sexually oriented business performer license. A. On determining that grounds for denial of a license, license revocation or suspension exist, the Chief of Police or his/her designee shall furnish written notice of the proposed action to the applicant/license holder. Such notice shall set forth the time and place of a hearing before the City Manager or a designated hearing officer and the ground or grounds upon which the hearing is based, the pertinent Chula Vista Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant/license holder, or shall be delivered to the license holder personally, at least ten (10) days prior to the hearing date. B. On determining that grounds for denial of a license exist, the Chief of Police shall furnish written notice of the proposed action to the applicant/license holder. The decision of the Chief of Police shall be appealable to the City Manager by filing a written request for a hearing with the City Clerk within fifteen (15) days following the day of mailing of the Chief of Police 's decision and paying the fee for appeals provided under this code. All such appeals shall be filed 35 1-85 with the City Clerk and shall be public records. The City Manager shall issue a notice which shall set forth the time and place of a hearing before the City Manager or a designated hearing officer which is within thirty (30) days from the date the appeal was filed and the ground or grounds upon which the hearing is based, the pertinent Chula Vista Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant/license holder, or shall be delivered to the license holder personally, at least ten (10) days prior to the hearing date. C. The applicant shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The City Manager or designated hearing officer shall not be bound by the formal rules of evidence. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness at the request of the license holder. Extensions of time or continuances sought by a license holder/appellant shall not be considered delay on the part of the city or constitute failure by the City to provide for prompt decisions on license suspensions or revocations. D. A license may be revoked, based on any of the following causes arising from the acts or omissions of the license holder: 1. The license holder has made any false, misleading, or fraudulent statement of material fact in the application for a performer license. 2. The license holder has pled guilty, nolo contendere or been convicted of a specified criminal activity. 3. Failure to comply with the requirements of this Chapter. E. After holding the hearing in accordance with the provisions of this section, if the City Manager or designated hearing officer finds and determines that there are grounds for revocation or suspension, the City Manager or designated hearing officer shall revoke or suspend the license. After holding the hearing in accordance with the provisions of this section on the denial of a license, the City Manager or designated hearing officer shall decide to sustain the decision, modify the decision or order the decision stricken and issue such order as the City Manager or designated hearing officer finds is supported by the entire record. The City Manager or designated hearing officer shall render a written decision that shall be hand delivered or overnight mailed to the applicant/license holder within four (4) business days of the hearing. The City Manager or designated hearing officer's failure to render such a decision within this time frame shall constitute an approval or reinstatement of the license. F. In the event a license is revoked pursuant to this section, another sexually oriented business performer license shall not be granted to the license holder within twelve (12) months after the date of such revocation. G. The decision of the City Manager or designated hearing officer shall be final. H. The time for a court challenge to a decision of the City Manager or designated hearing officer is governed by California Code of Civil Procedure § 1094.8. 36 1-86 I. Notice of the City Manager's or designated hearing officer's decision and his/her findings shall include citation to California Code of Civil Procedure § 1094.8. J. Any applicant or license holder whose license has been denied, suspended, or revoked, pursuant to this section shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure § 1094.8. 9.13.170 Display of license identification cards. The Chief of Police shall provide each performer/adult cabaret dancer required to have a license pursuant to this Chapter with an identification card containing the name, address, photograph, and license number of such performer/adult cabaret dancer. Every performer/adult cabaret dancer shall have such card available for inspection at all times during which he or she is on the premises of the sexually oriented business at which he or she performs. 9.13.180 Sexually oriented business performer license nontransferable. No sexually oriented business performer license maybe sold, transferred, or assigned by any license holder or by operation of law, to any other person, group, partnership, corporation, or any other entity. Any such sale, transfer, or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the sexually oriented business performer license, and the license thereafter shall be null and void. 9.13.190 Violations. A. Any license holder violating or causing the violation of any of these provisions regulating sexually oriented business performer licenses shall be subject to license revocation/suspension pursuant to section 9.13.160 above, a fine of not more than one thousand dollars ($1,000.00) pursuant to Government Code §§ 36900 and 36901, and any and all other civil remedies. All remedies provided herein shall be cumulative and not exclusive. Any violation of these provisions shall constitute a separate violation for each and every day during which such violation is committed or continued. B. In addition to the remedies set forth in section 9.13.160, any violation of any of these provisions regulating sexually oriented business performer licenses is hereby declared to constitute a public nuisance and may be abated or enjoined. C. The restrictions imposed pursuant to this section are part of a regulatory licensing process, and do not constitute a criminal offense. Notwithstanding any other provision of the Chula Vista Municipal Code, the City does not impose a criminal penalty for violations of the provisions of this ordinance related to sexual conduct or activities. 9.13.200 Sexually oriented business non-performer license. A. No individual who works as anon-performer in a managerial position in a sexually oriented business shall be employed, hired, engaged, or otherwise retained in a sexually oriented business without first obtaining a sexually oriented business non-performer license. 37 1-87 B. Individuals who wish to work as non-performer managers in a sexually oriented business shall file a written, signed, and verified application or renewal application for a sexually oriented business non-performer license on a form provided by the Chief of Police. Such application shall contain the following information: 1. The applicant's legal name and all used aliases. 2. Date of birth. 3. Driver's license or identification number and state of issuance or other state identification which confirms the name of the applicant. 4. The license applicant's fingerprints on a Livescan form provided by the Chula Vista police department. Any fees for fingerprints shall be paid by the applicant. Fingerprints shall be taken within six (6) months of the date of application. 5. Whether the applicant has pled guilty or pled nolo contendere or been convicted of a specified criminal activity. 6. The name and address of the sexually oriented business where the applicant proposes to work as anon-performer in a managerial capacity. C. The information provided above in subsection B of this section which is personal, private, confidential or the disclosure of which could expose the applicant to the risk of harm will not be disclosed under the California Public Records Act. Such information includes, but is not limited to, the applicant's mailing address, date of birth, age, driver's license number and social security number. The City Council in adopting the application system set forth herein has determined in accordance with Government Code § 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this Chapter by ensuring that the applicant's privacy, confidentiality and/or security interests are protected. The City Clerk shall cause the above-mentioned information to be redacted from any copy of a completed application form made available to any member of the public. D. The Chief of Police or his/her designee must be available during normal working hours Monday through Friday to accept sexually oriented business non-performer applications. The Chief of Police or his/her designee shall determine if an application is complete within five (5) business days. If the Chief of Police determines that the application is incomplete, the Chief of Police shall immediately inform the applicant of such fact and the reasons therefore, including any additional information necessary to render the application complete. Upon receipt of a completed sexually oriented business non-performer application in which the applicant denies any conviction of a misdemeanor or felony constituting a specified criminal activity, the Chief of Police or his/her designee shall permit temporary employment of such applicant in a sexually oriented business that possesses a valid sexually oriented business regulatory license. 9.13.210 Investigation and action on sexually oriented business non-performer license application. 38 1-88 A. Upon submission of a completed sexually oriented business non-performer license application by an individual who wishes to work in a managerial position in a sexually oriented business, the Chief of Police or his/her designee shall immediately stamp the application "Received" and in conjunction with City staff, including members of the police department, shall promptly investigate the information contained in the application to determine whether the provisions of Section 9.13.200 are satisfied. B. Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The Chief of Police's determination of any violation of Section 9.13.200 or the existence of any of the grounds set forth in section F below shall be made within ten (10) business days from the date the application is filed with the Chief of Police. In the event the Chief of Police is unable to complete the investigation within ten (10) business days, he/she shall promptly notify the applicant. In no case shall the investigation exceed thirty (30) days. C. The Chief of Police shall render a written decision to grant or deny the non- performer license within the foregoing ten (10) day time period set forth in section B above. Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing ten (10) day period, or thirty (30) day period if extended pursuant to section B above, at the address provided by the applicant in the application. Notice of such decision shall also be mailed first class postage prepaid or hand delivered to the owner or management of the sexually oriented business(es) identified on the applicant's application. D. The Chief of Police shall grant the application for anon-performer license unless one or more of the grounds set forth in subsection E of this section is satisfied. E. The Chief of Police shall deny the application of anon-performer for a license to work in a managerial capacity at a sexually oriented business, or suspend or revoke an existing license, based on any of the following grounds: 1. The applicant/license holder has made a false, misleading, or fraudulent statement of material fact in the application for anon-performer license. 2. The applicant is under eighteen (18) years of age. 3. The sexually oriented business identified by the applicant is not authorized to operate as a business under the laws of the state or city and/or does not have a valid sexually oriented business regulatory license. 4. The applicant has pled guilty, or pled polo contendere or been convicted of a specified criminal activity. Failure to comply with the requirements of this Chapter. F. The Chief of Police shall notify the applicant as follows: 1. The Chief of Police shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. 39 1-89 2. If the application for anon-performer license is denied, the Chief of Police shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the applicant may appeal the denial to the City Manager. The City Manager or a designated hearing officer shall conduct a hearing as described in section 9.13.220. G. Failure of the Chief of Police or his/her designee to render a decision on the application within the time frames established by this section shall be deemed to constitute an approval of the non-performer license. H. Each license holder must annually renew his/her license with the Chief of Police or his/her designee by a written application for a license renewal. If said application conforms to the previously approved application and there has been no change with respect to the applicant having been convicted of any specified criminal activity, the Chief of Police or his/her designee shall renew the applicant's non-performer license for one (1) year. The renewal application shall be made at least thirty (30) days before the expiration date of the license. Applications for renewal shall be acted upon as provided herein for action upon an initial application for anon- performer license. The Chief of Police's denial of a renewal application is subject to the hearing provisions of section 9.13.220. 9.13.220 Revocation/Suspension/Denial of sexually oriented business non-performer license. A. On determining that grounds exist to deny an original or renewal application for a non-performer license, or suspend or revoke an existing license, the Chief of Police or his/her designee shall furnish written notice of the proposed action to the applicant. Such notice shall set forth the time and place of a hearing before the City Manager or a designated hearing officer and the ground or grounds upon which the hearing is based, the pertinent Chula Vista Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant, or shall be delivered to the applicant personally, at least ten (10) days prior to the hearing date. B. The decision of the Chief of Police to deny, suspend or revoke anon-performer license shall be appealable to the City Manager by filing a written request for a hearing with the City Clerk within fifteen (15) days following the day of mailing of the Chief of Police's decision and paying the fee for appeals provided under this code. All such appeals shall be filed with the City Clerk and shall be public records. The City Manager shall issue a notice which shall set forth the time and place of a hearing before the City Manager or a designated hearing officer which is within thirty (30) days from the date the appeal was filed and the ground or grounds upon which the hearing is based, the pertinent Chula Vista Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant or shall be delivered to the applicant personally, at least ten (10) days prior to the hearing date. C. The applicant shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The City Manager or designated hearing officer shall not be bound by the formal rules of evidence. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a 40 1-90 witness at the request of the applicant. Extensions of time or continuances sought by an applicant/appellant shall not be considered delay on the part of the city or constitute failure by the City to provide for prompt decisions on denial of anon-performer license. D. After holding the hearing in accordance with the provisions of this section, if the City Manager or designated hearing officer finds and determines that there are grounds to deny or revoke anon-performer license, the City Manager or designated hearing officer shall deny or revoke the license. After holding the hearing in accordance with the provisions of this section on renewal of anon-performer license, the City Manager or designated hearing officer shall decide to sustain the decision, modify the decision or order the decision stricken and issue such order as the City Manager or designated hearing officer finds is supported by the entire record. The City Manager or designated hearing officer shall render a written decision that shall be hand delivered or overnight mailed to the applicant and any sexually oriented business that the applicant has identified on his/her application within four (4) working days of the hearing. The City Manager or designated hearing officer's failure to render such a decision within this time frame shall constitute approved renewal of the applicant's non-performer license. E. If an application is denied pursuant to this section, the applicant may reapply for managerial work with a sexually oriented business twelve (12) months after the date of such denial. F. The decision of the City Manager or designated hearing officer shall be final. 9.13.230 Severability. This Chapter and each section and provision of said Chapter hereunder, are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said Chapter, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. Should any procedural aspect of this Chapter be invalidated, such invalidation shall not affect the enforceability of the substantive aspects of this Chapter. ; SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) FINDINGS The City Council has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that this proposed activity is not a "Project" as defined under section 15378 of the State CEQA Guidelines because it will not result in a physical change to the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the action proposed is not subject to CEQA. SECTION 5. REPEAL OF CHAPTER 9.22. Chapter 9.22 of the Chula Vista Municipal Code, entitled "Regulation of Sexually Explicit Material" is hereby repealed in its entirety. 41 1-91 SECTION 6. SEVERABILITY. If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application to any other person or circumstance. The City Council of the City of Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional. SECTION 7. EFFECTIVE DATE. This Ordinance shall take effect and be in force on the thirtieth day after its final passage. SECTION 8. PUBLICATION. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted according to law. PASSED, APPROVED AND ADOPTED at the special meeting of the City Council of the City of Chula Vista on the 1st day of November, 2012, by the following vote, to wit: AYES: NOES: ABSENT: Presented by: --~ -~. en R. oogins orney Approved as to form by: Glen R. oogi City rney 42 1-92 City of Chula Vista Exhibits to Staff Report to City Council November 1, 2012 Volume 1 A. Studies Documenting The Negative Secondary Side Effects Of Adult Businesses 1. Partial Summary of Secondary Effect Studies 2. Summaries of Key Reports Concerning the Negative Secondary Effects of Sexually Oriented Businesses, compiled by Louis F. Comus III 3. Amarillo, Texas, Planning Department (1977) 4. Austin, Texas, Office of Land Development Services (1.986) 5. Beaumont, Texas (1982) 6. Chattanooga, Tennessee (2003) 7. Cleveland, Ohio (1977) 8. Dallas, Texas (1997) 9. Dallas, Texas (2007) 10. Ft. Worth, Texas (2004) 11. Garden Grove, California (1991) 12. Greensboro, North Caroling (2003) 13. Houston, Texas, City Council Report (1997) 14. Indianapolis, Indiana, Department of Metropolitan Development (1984} 1 ~ _93 ATTACHMENT 3 Volume II 15. Jackson County, Missouri (2008) 16. Kennedale, Texas (2005) 17. Littleton, Colorado (2004) 18. Los Angeles, California, Department of City Planning (1977) 19. Louisville, Kentucky (2004) 20. Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses, State of Minnesota (1989} 21. New York, New York (1994) 22. Newport News, Virginia (1996) 23. Oklahoma City, Oklahoma (1986) 24. Phoenix, Arizona (1979) 25. St. Cloud, Minnesota (1994) 26. Seattle, Washington, Department of Construction and Land Use (1989) Volume III 27. Spokane, Washington (2001) 28. Times Square, New York City (1994) 29. Tucson, Arizona (1990) 30. Whittier, California (1978) 31. A Methodological Critique of the Linz-Paul Report: A Report to the San Diego City Attorney's Office (March 21, 2003) 32. Testimony of David Sherman Before the Michigan House Committee on Ethics and Constitutional Law (2000) 2 1-94 33. Closin' Time: Effective Regulation of Adult Businesses' Hours of Operation, by Scott Berthold (2000) 34. Peep Show Establishments, Police Activity, Public Place and Time: A Study of Secondary Effects in San Diego, California, by Daniel Linz et al. (2004) 35. Do Peep-shows "Cause" Crime? A Response to Linz, Paul, and Yao, by Richard McCleary et al. (2006) 36. "Rural Hotspots: The Case of Adult Businesses," 19 Criminal Justice Policy Review 153 (2008) 37. "Correlates of Current Transactional Sex among a Sample of Female Exotic Dancers in Baltimore, MD," Journal of Urban Health (2011} 38. "Stripclubs According to Strippers: Exposing Workplace Sexual Violence," by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota Volume IV 39. 1986 Attorney General's Report on Pornography, Volume 1 Volume V 40. 1986 Attorney General's Report on Pornography, Volume 2 Volume VI B. Other Supporting Documentation Declarations from Fullerton Police Officers Craig Brower, Mike Chocek, and ABC Investigator Kevin Ortega related to the City of La Habra's Nuisance Abatement Action for a Totally Nude Facility 2. Police reports of investigations conducted by City of La Habra Interview of Julia (Nude Dancer) 4. Det. Robert Navarro's presentation on "Harmful Effects of Pornography, Los Angeles Case Study" (1994} 1-95 5. "My Personal Experience With Sexually Oriented Business" by Gene McConnell 6. Letter from Lorraine Day, M.D. regarding the AIDS virus 7. Sheriff s Report to City Council of City of Encinitas, November 9, 1998 8. City of Arcadia Police Department undercover surveillance reports, 2000 9. HIV/AIDS Epidemiology Report, 2010, prepared by County of San Diego Health and Human Services Agency 10. SDT Fact Sheet, Sexually Transmitted Diseases by Year of Report, San Diego County, 1994-2008, prepaed by County of San Diego Health and Human Services Agency i 1. California Communicable Disease Summary 2000, Issued July 2002, prepared by County of Orange Health Care Agency 12. HIV/AIDS Surveillance Statistics, 2003, Issued October 2004, prepared by County of Orange Health Care Agency Volume VII C. Published Cases 1. 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999) 2. 7978 Corporation v. Pitchess, 41 Ca1.App.3d 42 (1974) 3. 84 Video/Newsstand, Inc. v. Santini, 455 Fed.Appx. 541 (6th Cir. 2011) 4. Alameda Books, Inc. v. City of Los Angeles, 631. F.3d 1031 (9th Cir. 2011) 5. Anheusen-Busch v. Schmoke, 101 F.3d 325 (4th Cir. 1996) 6. Baby Tam & Co., Inc. v. City of Las Vegas ("Baby Tam I"), 154 F.3d 1097 (9th Cir. 1998) 7. Baby Tam & Co., Inc. v. City of Las Vegas ("Baby Tam IP'), 199 F.3d 1111 (9th Cir. 2000) 4 1-96 8. Baby Tam & Co., Inc. v. City of Las Vegas ("Baby Tam IIl'), 247 F.3d 1003 (9th Cir. 2001) 9. Barron Corporation v. City of Dayton, 923 F.2d 470 (6th Cir. 1991) 10. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) 11. Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003} 12. Berry v. City of Santa Barbara, 40 Ca1.App.4th 1075 (1995) 13. Brownell v. City of Rochester, 190 F.Supp.2d 472 (W.D.N.Y. 2001) 14. BSA, Inc. v. King County, 804 F.2d 1004 (9th Cir. 1986) 15. California v. La Rue, 409 U.S. 109 (1972) 16. Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2004) 17. Chamblee Visuals, LLC v. City of Chamblee, 506 S.E.2d 113 (Ga. 1998) 18. City of Colorado Springs v. 2354 Inc. dba Baby Dolls, 896 P.2d 272 (Co. 1995) 19. City of Dallas v. Stanglin, 490 U.S. 19 (1989) 20. City of Erie v. Pap's A.M. ("Kandyland"), 529 U.S. 277 (2000) 21. City of Littleton, Colorado v. Z.J. Gifts D-4, 541 U.S. 744 (2004) 22. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) 23. City of National City v. Wiener, 3 Cal.4th 832 (1993) 24. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) 25. City of Vallejo v. Adult Books, 167 Ca1.App.3d 1169 (1985) . 26. Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 2001) 27. Club Southern Burlesque, Inc. v. City of Carrolton, 265 Ga. 528, 457 S.E.2d 816 (1995) 5 1-97 28. Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998) 29. Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996) 30. Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007) 31. Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Ca1.App.3d 980 (1985) 32. Department ofAlcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board of California ("Vicary "), 99 Ca1.App.4th 880 (2002) 33. Deja Vu-Everett-Federal Way, Inc. v. City of Federal Way, 46 Fed.Appx. 409 (9th Cir. 2002) - Volume VIII 34. .Deja Vu of Nashville, Inc. v. Metro Gov't of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001) 35. Diamond v. City of Taft, 215 F.3d 1052 (9th Cir. 2000) 36. DiMa Corp. V. Town ofHallie, 185 F.3d 823 (7th Cir. 1999 37. Doctor John's, Inc. v. City of Roy, 465 F.3d 1150 (10th Cir. 2006) 3 8. Dream Palace v. County of Maricopa, 3 84 F.3 d 990 (9th Cir. 2004) 39. DLS, Inc. v. City of Chattanooga, 894 F.Supp. 1140 (E.D. Tenn. 1995) 40. Doe v. City of Minneapolis, 898 F.2d 612 (8th Cir. 1990) 41. Ellwest Stereo Theatre, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982) 42. Entertainment Prods., Inc. w. Shelby County, 588 F.3d 372 (6th Cir. 2009). 43 . E. WA.P., Inc. v. City of Los Angeles, 56 Ca1.App.4th 310 (i 997) 44. Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006) 45. Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th Cir. 2007) 46. Flanigan's Enters., Inc. v. Fulton County, 596 F.3d 1265 (1 lth Cir. 2010) 6 1-98 47. Ford v. State of Texas, 753 S.W.2d 451 (Tx. 1988) 48. FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988) 49. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) 50. Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875 51. G.M. Enterprises v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003) 52. H&A Land Corp, v. City ofKennedale, 480 F.3d 336 (5th Cir. 2007) 53. Hang On, Inc, v. City of Arlington, 65 F.3d 1248 (5th -Cir. 1995) 54. Imaginary Images, Inc. v. Evans, 612 F.3d 736 (4th Cir. 2010) 55. International Eateries v. Broward County, 941 F.2d 1157 (11th Cir. 1991}, cert. denied 503 U.S. 920 (1992) 56. Isbell v. City of San Diego, 450 F.Supp.2d 1143 (S.D. Ca12006) 57. Isbell v. City of San Diego, 258 F.3d 1108 (9th Cir. 2001) 58. Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986) 59. Krontz v. City of San Diego, 136 Cal.App.4th 1126 (2006} 60. Lacy Street Hospitality Service, Inc. v. City of Los Angeles, 125 Ca1.App.4th 526 (2004) . 61. Lady J Lingerie, Inc. v. City of Jacksonville, 973 F.Sup. 1428 (M.D. Fla. 1997} 62. Lady J. Lingerie, Inc, v. City of,Iacksonville, 176 F.3d 1358 (11th Cir. 1999) 63. Lakeland Lounge v. City of Jacksonville, 973 F.2d 1255 (5th Cir. 1992) 64. Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000) 65. LLEH, Inc. v. Wichita County, 289 F.3d 358 (5th Cir. 2002) 66. Lydo Ent. v. Las Vegas, 745 F.2d 1211 (9th Cir. 1984) 7 1-99 67. Madain v. City of Stanton, 185 Ca1.App.4th 1277 (2010) 68. McCrothers Corp, d/b/a Tree City Bay, et al. v City of Madan, 728 N.W.2d 124 (2007) 69. Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993) 70. National Amusements, Inc. v. Town of Dedham, 43 F:3d 731 (1st Cir. 1995) 71. N. W. Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5th Cir. 2003) 72. N.W. Enterprises, Inc. v. City of Houston, 372 F.3d 333 (Sth Cir. 2004) 73. N. Y. State Liquor Authority v. Bellanca, 452 U.S. 714 (1981) 74. Ocello v. Koster, 354 S.W.3d 187 (Mo. 2011) Volume IX 75. Parker dba Paperdolls v. Whitfield County, 463 S.E.2d 116 (Ga. 1995) 76. Peek-a-Boo Lounge v. Manatee County, 630 F.3d 1346 (1 lth Cir. 2011) 77. People v. Superior Court (Lucero), 49 Ca1.3d 14 (1989) 78. Pleasureland Museum, Inc, v. Beutter, 288 F.3d 988 (7th Cir. 2002) 79. Red BZuffDrive-In, Inc. v. Vance, 648 F.2d 1020 (5th Cir. 1981) 80. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) 81. Richland Bookman, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998) 82. Sensations, Inc. v. City of brand Rapids, 526 F.3d 291 (6th Cir. 2008) 83. Sewell v. State of Georgia, 233 S.E.2d 187 (Ga. 1977) 84. SOB, Inc. v. City of Benton, 317 F.3d 856, 863 (8th Cir. 2003) 85. Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir. 1996) 86. Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986) 8 1-100 87. Sundance Saloon, Inc. v. City of San Diego, 213 Cal.App. 3d 807 (1989) 88. Talk of the Town v. Department ofFinance and Business Services, 343 F.3d 1063 (9th Cir. 2003) 89. Tee & Bee v. City of West Allis, 936 F. Supp. 1479 (E.D. Wis. 1996) 90. Tily B., Inc. v. City of Newport Beach, 69 Ca1.App.4th 1 (1998) 91. TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705 (5th Cir. 1994) 92. Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 {9th Cir. 1993) 93. U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997) - 94. U. S: v. Thomas, 74 F.3 d 701 (6th Cir. 1996) 95. Wall Distributors, Inc. v. City of Newport-News, Virginia, 782 F.2d 1165 (4th Cir. 198b) 96. World Wide Video v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004) 97. Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976) 98. Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000) 1984612.1/1675.002 9 1-101 SUMMARY OF LAND USE STUDIES RELATING TO SECONDARY EFFECTS OF "ADULT" BUSINESSES LAND USE STUDY: Amarillo, Texas DATE: September 12, 1977 OVERVIEW: This .planning department report cites several sources including national news magazines; "adult business" ordinances from other cities, and American Society of Planning Officials report and pertinent Supreme Court decisions. Lengthy explanation of the Miller test (with legal definitions), discussions of Young v. American Mini Theaters, and a comparison of the Boston and Detroit zoning models are included. The city defined "adult businesses" as taverns, lounges, lounges with semi-nude entertainment, and bookstores or theaters with publications featuring nudity and explicit sexual activities. At the time, Amarillo had three such theaters and four bookstores with space for such publications. FINDINGS: The police department provided an analysis showing that areas of concentrated "adult only" businesses had 21/z times the street crime as the city average. The planning department concluded that concentrations of these businesses have detrimental effects on residential and commercial activities caused by: (1) noise, lighting and traffic during late night hours; (2) increased opportunity for street crimes; and (3) the tendency of citizens to avid such business areas. The study noted that lack of zoning regulations would lead to concentrations of sexually oriented businesses (causing increased crime) or more such establishments locating near residential areas or family and juvenile oriented activity sites (churches, parks, etc.). RECOMMENDATIONS: (1) Adult businesses locate 1,000 feet-from each other; no recommended distance was specified from residential zones or family/juvenile activities; (2) city development of an amortization schedule and pernut/licensing mechanism; (3) city regulation of signs and similar farms of advertising; (4) vigorous enforcement of State Penal Code, especially relating to "harmful to minors;" and (5) city amendments prohibiting minors form viewing or purchasing sexually oriented materials (enforced physical barriers). 2. LAND USE STUDY: Austin, Texas DATED: May 19, 1986 OVERVIEW: The report was the basis for developing an amendment to existing sexually oriented business ordinances. At the rime, 49 such businesses operated in Austin, mostly bookstores, theaters, massage parlors and topless bars. The study examined crime rates, property values, and trade area characteristics. 1-102 ATTACHMENT 4 The report focused on sexually related crimes in four study areas (with sexually oriented businesses) and four control areas (close to study areas and similar). Two study areas had one sexually oriented business and the others had two such businesses. To determine the effects of these businesses on property values, the city sent surveys to 120 real estate appraising or lending firms (nearly half responded). For trade area characteristics, three businesses (a bookstore, theater and topless bar) were observed on a weekend night to determine customer addresses. CRIME: Sexually related crime ranged from 177-482% higher in the four study areas than the city average. In the two study areas containing two sexually oriented businesses, the rate was b6% higher than in the study areas with one such business. All control areas had crime rates near the city average. REAL ESTATE: 88% said that a sexually oriented business within one block of a residential area decreases the value of the homes (33% said depreciation would be at least 20%). Respondents also said such a business is a sign of neighborhood decline, making underwriters hesitant to approve the 90-95% financing most home buyers require. They said commercial property is also negatively effected by such businesses. TRADE AREA CHARACTERISTICS: Of 81 license plates traced for owner address, only three lived within one mile of the sexually oriented business. 44% were from outside Austin. RECOMMENDATIONS: (1} Sexually oriented businesses should be limited to highway orregionally-oriented zone districts; (2} businesses should be dispersed to avoid concentration; and (3) conditional use permits should be required for these businesses. 3. LAND USE STUDY: Beaumont, Texas DATE: September I4, 1982 OVERVIEW: This report by the city planning department encourages amendments to existing "adult busines$" ordinances to include eating or drinking places featuring sexually oriented entertainment (strippers, etc.). Zoning laws required "adult uses" to locate 500 feet from residential areas; 300 feet from any other adult bookstore, adult theater, bar, pool hall or liquor store; and 1,000 feet from a church, school, park, or recreational facility where minors congregate. CRIME: Police verified that bars, taverns, and lounges (especially those with sexually oriented entertainment) are frequent scenes of prostitution and the sale/use of narcotics. On the whole, all criminal activity was higher at sexually oriented businesses. 2 1-103 RECOMMENDATIONS: (1) Add eatingJdrinking places that exclude minors (under Texas law), unless accompanied by a consenting parent, guardian or spouse; (2) require specific permits for areas zoned as General Commercial-Multiple Family Dwelling Districts; and (3) reduce the required distance of sexually oriented businesses from residential areas, school, sparks, and recreational facilities from 1,000 to 750 feet. 4. LAND USE STUDY: Cleveland, Ohio DATE: August 24, 1977 OVERVIEW: This police department report is taken from information given by Captain Delau participating in a panel discussion at the National Conference on the Blight of Obscenity held in Cleveland July 28-29, 1977. The topic was "The Impact of Obscenity on the Total Community." Crime statistics are included for 1976 robberies and rapes. Areas evaluated were census tracts (204 in the whole city, I S study tracts with sexually oriented businesses). At the time of the study, Cleveland had 26 pornography outlets (8 movie houses and 18 bookstores with peep shows). Their location was not regulated by city zoning laws. FINDINGS: For 1976, study tracts had nearly double the number of robberies as the city as a whole (40.5 per study tract compared to 20.5 for other city tracts). In one study tract with five sexually oriented businesses and 730 people, there were 136 robberies. In the city's largest tract (13,587 people, zero pornography outlets) there were only 14 robberies. Of the three tracts with the highest incidence of rape, two had sexually oriented businesses and the third bordered a tract with two such businesses. In these three, there were 41 rapes in 1976 (14 per tract), nearly seven times the city average of 2.4 rapes per census tract. CONCLUSION: "Close scrutiny of the figures from the Data Processing Unit on any and every phase of the degree of crime as recorded by census tracts indicates much higher crime rate where the pornography outlets are located." 5. LAND USE STUDY: Garden Grove, California DATE: October 23, 1991 OVERVIEW: This report by independent consultants summarizes statistical analyses to determine a basis for adult business regulations because of their negative impact on the community in terms of crime, decreased property values and diminished quality of life. Statistics were measured form 1981-90 and included crime data, and surveys of real estate professionals and city residents. Garden Grove Boulevard, with seven adult businesses, was selected as the study area. The study incorporated many control factors to insure accurate results. The report includes a brief legal history of adult 3 1-104 business regulation and an extensive appendix with samples, materials and a proposed statute. CRIME: Crime increases significantly with the opening of an adult business or with the expansion of an existing business or the addition of a bar nearby. The rise was greatest in "serious" offenses (termed "Part I" crimes: homicide, rape, robbery, assault, burglary, theft and auto theft). On Garden Grove Boulevard, the seven adult businesses accounted for 36% of all crime in the area. In one case, a bar opened less than 500 feet from an adult business, and serious crime within 1,000 feet of that business rose more than 300% the next year. REAL ESTATE: Overwhelmingly, respondents said that an adult business within 200-500 feet of residential and commercial property depreciates the property value. The greatest impact was on single family homes. The chief factor cited for the depreciation was the increased crime associated with adult businesses. HOUSEHOLD SURVEYS: 118 calls were completed in a random sample of households in the Garden Grove Boulevard vicinity, The public consensus was that adult businesses on Garden Grove Boulevard were a serious problem. Nearly 25% of the surveyed individuals lived within 1,000 feet of an adult business. More than 21% cited specific personal experiences of problems relating to these businesses, including crime, noise, litter, and general quality of life. 80% said they would want to move if an adult business opened in their neighborhood, 60% saying they "would move" or "probably would move." 85% supported city regulation of the locations of adult businesses, with 78% strongly advocating the prohibition of adult businesses within 500 feet of a residential area, school or church. Women commonly expressed fear for themselves and their children because of adult businesses. RECOMMENDATIONS: The report concludes that adult businesses have "real impact" on everyday life through harmful secondary effects and makes four recommendations: (1) keep current requirement of 1,000 feet separation between adult businesses; (2) prohibit adult establishments within 1,000 feet of residential areas; (3) enact a system of conditional use permits for adult businesses with Police Department involvement in every aspect of the process; and (4) prohibit bars/taverns within 1,000 feet of an adult business. 6. LAND USE STUDY: Houston, Texas DATE: November 3, 1983 OVERVIEW: Report by the Committee on the Proposed Regulation of Sexually Oriented Businesses determines the need and appropriate means of regulating such businesses. Four public hearings provided testimony from residents, business owners, 4 1-105 realtors, appraisers, police and psychologists. The committee and legal department then reviewed the transcripts and drafted a proposed ordinance. More hearings obtained public opinion on the proposal and the ordinance was refined for vote by the City Council. TESTIMONY: The testimony was summarized into six broad premises: (1) the rights of individuals were affirmed; (2) sexually oriented businesses could exist within regulations that minimize their adverse effects; (3) the most important negative effects were on neighborhood protection, community enhancement, and property values; (4) problems increased when these businesses were cont;entrated; (5) such businesses contributed to criminal activities; and (6) enforcement of existing statutes were difficult. ORDINANCE: (1) Required permits for sexually oriented businesses (non- refundable $350 application fee); (2) distance requirements: 750 feet from a church or school; 1,000 feet from other such businesses; 1,000 foot radius from an area of 75% residential concentration; (3) amortization period of six months that could be extended by the city indefinitely on the basis of evidence; (4) revocation of permit for employing minors (under 17), blighting exterior appearance or signage, chronic criminal activity (three convictions), and false permit information; and (5) age restrictions for entry. LAND USE STUDY: Houston, TX DATE: January 7, 1997 OVERVIEW: This report by the Sexually Oriented Business Revision Committee to the City Council concerns a proposed amendment and addition to the present ordinance. The report summarizes prior efforts to regulate sexually oriented businesses, testimony by the Vice Division of the Houston Police Department, reports and requests, citizen correspondence, industry memos, legal department research, the public testimony taken by the Committee. The purpose of this report was to review the existing city ordinance and the city's ability to enforce it, and to assess and analyze the ordinance with respect to its strengths and weaknesses in terms of how effectively the ordinance protects the public and the businesses subject t4 regulation. FINDINGS/CONCLUSIONS: (1) Because of criminal activities associated with sexually oriented businesses, requiring the licensing of entertainers and managers can establish a foundation for documenting those with prior convictions for prostitution, public lewdness, etc. and can help eliminate underage entertainers (under 18); (2) a serious predicament in obtaining convictions for public lewdness, prostitution, indecent exposure, and other criminal activities exists because police officers do not engage in inappropriate behavior and the entertainer thus avoids lewd behavior that might normally occur; {3) "glory holes" are used to promote anonymous sex and facilitate the spread of sexually transmitted diseases; {4) sexually oriented businesses that did not have clear 5 1-106 Imes of vision encouraged lewd behavior or sexual contact; (5) multi-family tracts were being counted as one tract in the residential quota, although many families were living independently upon one tract; (6) inadequate lighting prevents managers and police officers from monitoring illegal activities, and one possible approach is to make lighting requirements similar to the minimum requirements of the Uniform Building Code for "exit" signs; (7) businesses with locked rooms were often used as fronts for prostitution; (8} public parks and possibly private parks should be included in distancing restrictions; {9) notification of a pending sexually oriented business permit should be given to surrounding neighbors of proposed sites; and (10) continuation of the amortization provisions of the previous ordinances would be preferable to grandfathening nonconforming sexually oriented businesses since grandfathering such businesses allows those uses to continue in perpetuity, creates a monopolistic position for such uses and prevents the municipality from exercising its power to protect its residents. ORDINANCE: (1) Include "arcade devices" (enclosed booths} intended for viewing by less than one hundred persons in the prohibition for enclosed booths; (2) prohibit wall penetrations ("glory holes"); (3) increase distance requirements from 750 feet to 1,500 feet for churches, schools and day care centers, and increase the radius for counting residential tracts from 1,000 feet to 1,500 feet, without unduly restricting availability of locations; (4) for each acre ofmulti-family tract, utilize a ratio of eight single family tracts; (5) extend signage and exterior appearance restrictions to businesses located in multi-tenant centers; (6) require lighting of intensity to illuminate customer areas to not less than one foot candle as measured at four feet above floor level; (7) include public parks and if possible, private parks as protected land uses; (S) upon filing of a permit application, applicants must place signs at the premises and publish notices in the newspaper; (9) require permits for all entertainers and managers; (10) prohibit entertainers from touching customers; and (11) continue amortization of existing businesses with extensions of time for affected businesses to comply (prior average extensions were for about 2 to 3 years). 7. LAND USE STUDY: Indianapolis, Indiana DATED: February 1984 OVERVIEW: After a ten year growth in the number of sexually oriented businesses (to a total of 68 of 43 sites) and numerous citizens' complaints of decreasing property values and rising crime, the city compared six sexually oriented business "study" areas and six "control" locations with each other and with the city as a whole. The study and control areas had high population, low income and older residences. In order to develop a "best professional opinion," the city collaborated with Indiana University on a national survey of real estate appraisers to determine valuation effects of sexually oriented businesses on adjacent properties. 6 1-107 CRIME: From 1978-82, crime increases in the study areas were 23% higher than the control areas (46% higher than the city as a whole). Sex related crimes in the study areas increased more than 20% over the control areas. Residential locations in the study areas had a S6% greater crime increase than commercial study areas. Sex related crimes were four times more common in residential study areas than commercial study areas with sexually oriented businesses. REAL ESTATE: Homes in the study areas appreciated at only 1/2 the rate of homes in the control areas, and'/a the rate of the city. "Pressures within the study areas" caused a slight increase in real estate listings, while the city as a whole had a 50% decrease, denoting high occupancy turnover. Appraisers responding to the survey said one sexually oriented business within one block of residences and businesses decreased their value and half of the respondents said the immediate deprecation exceeded 10%. Appraisers also noted that value depreciation on residential areas near sexually oriented businesses is greater than commercial locations. The report concludes: "the best professional judgment available indicates overwhelmingly that adult entertainment businesses - even a relatively passive use such as an adult bookstore - have a serious negative effect on their immediate environs." RECOMMENDATIONS: Sexually oriented businesses locate at least 500 feet from residential areas, schools, churches or established historic areas. 8. LAND USE STUDY: Los Angeles, California DATE: June 1977 OVERVIEW: The department of city planning studied the effects of the concentration of sexually oriented businesses on surrounding properties for the years 1969-75 (a time of proliferation for such businesses). The report focuses on five areas with the greatest concentration of these businesses (compared to five "control" areas free of them}, and cites data from property assessments/sales, public meeting testimony, and responses from two questionnaires (one to business/residential owners within a 500 foot radius of the five study areas and a second to realtors/real estate appraisers and lenders). Crime statistics in the study areas were compared to the city as a whole. Also included: a chart of sexually oriented business regulations in eleven major cities, details of current regulations available under state/municipal law, and appendices with samples of questionnaires, letters, and other study materials. PROPERTY: While empirical data from 1969-75 did not conclusively show the relation of property valuations to the concentration of sexually oriented businesses, more than 90% of realtors, real estate appraisers and lenders responding to city questionnaires said that a grouping of such businesses within 500-1,000 feet of residential property decreases the market value of the homes. Also, testimony from residents and business 7 1-108 people at two public meetings spoke overwhelmingly against the presence of sexually oriented businesses citing fear, concern for children, loss of customers and difficulty in hiring employees at nan-adult businesses, and the necessity for churches to provide guards for their parking lots. CRIME: More crime occurred in areas of sexually oriented business concentration. Compared to city-wide statistics for 1969-75, areas with several such businesses experienced greater increases in pandering (340%), murder (42.3%), aggravated assault (45.2%), robbery (52.6%), and purse snatching (17%). Street robberies, where the criminal has face-to-face contact with his victim, increased almost 70% more in the study areas. A second category of crime, included other assaults, forgery, fraud, counterfeiting, embezzlement, stolen property, prostitution, narcotics, liquor laws, and gambling increased 42% more in the study areas over the city as a whole. RECOMMENDATIONS: The study recommended distances of more than 1,000 feet separating sexually oriented businesses from each other, and a minimum of 500 feet separation of such businesses from schools, parks, churches and residential areas. 9. LAND USE STUDY: Minneapolis, Minnesota DATE: October 1980 OVERVIEW: This report is divided into two sections: the relationship of bars and crime and the impact of "adult businesses" on neighborhood deterioration. In the study, an "adult business" is one where alcohol is served (including restaurants) or a sexually oriented business (i. e., saunas, adult theaters and bookstores, rap parlors, arcades, and bars with sexually oriented entertainment). Census tracts were used as study areas and evaluated for housing values and crime rates. Housing values were determined by the 1970 census compared to 1979 assessments. Crime rates were compared for 1974-75 and 1979-80. The study is strictly empirical and reported in a formal statistical manner; therefore it is difficult for layman interpretation of the data. FINDINGS: The report concludes that concentrations of sexually oriented businesses have significant relationship to higher crime and lower property values. Other than statistical charts, no statements of actual crime reports or housing values are included in the report. Thus, the lay reader has only the most generalized statement of how the committee interpreted the empirical data. RECOMMENDATIONS: First, that adult businesses be at least 1/10 mile (about 500 feet) from residential areas. Second, that adult business should not be adjacent to each other or even a different type of late night business (i. e., 24-hour laundromat, movie theaters). Third, that adult businesses should be in large commercial zones in various 1-109 parts of the city (to aid police patrol and help separate adult businesses from residential neighborhoods). The report said "policies which foster or supplement attitudes and activities that strengthen the qualities of the neighborhood are more likely to have desired impacts on crime and housing values than simple removal or restriction of adult businesses." 10. LAND USE STUDY: New York, New York DATE: November 1994 OVERVIEW: This study by the Department of City Planning evaluates the nature and extent of adverse impacts associated with adult entertainment uses in communities in New York City, in response to the proliferation of such uses (35% increase in past 10 years) and the fact that current zoning regulations did not distinguish between adult entertainment uses and other commercial uses without an "adult character." The study reviewed studies in other localities, including Islip, Los Angeles, Indianapolis, Whittier, Austin, Phoenix, and the State of Minnesota, as well as prior studies conducted in New York City. Surveys in six study areas within the city (with lesser concentrations of adult uses than Times Square) were conducted of representatives from community boards, local organizations and local businesses, as well as real estate brokers, police and sanitation officers, and representatives of the adult entertainment industry to gather information on land use, street and signage conditions, and other impacts of adult entertainment uses. An analysis of assessed values and crime data was also made. FINDINGS: More than 75% of adult uses are located in zoning districts that permit residential uses. Adult uses tend to concentrate, as 75% of the adult uses are located in ten of the city's 59 Community Districts. Adult uses tend to cluster in central locations or along major vehicular routes. Adult use accessory business signs are characterically at odds with neighborhood character -such signs generally occupy a greater percentage of storefront surface area, are more often illuminated and more often portray graphic, sexually-oriented images than the signs of other nearby commercial uses. 80% of surveyed real estate brokers reported that an adult entertainment use would have a negative impact upon the market value of property within 500 feet, and a majority indicated the same would occur within 500 to 1,000 feet. 80% of surveyed community organizations responded that adult entertainment uses negatively impact the community in some way, and almost 50% of surveyed businesses responded that they believed their businesses would be negatively affected if more adult uses were to locate nearby. Community residents expressed the strongest negative reactions to adult uses, and expressed fear of the consequences of the proliferation and concentration of adult uses in neighborhood-oriented shopping areas and of a deterioration in the quality of urban life, even in study areas where it could not be readily determined that negative impacts were being felt. Attitudinal data of the surveys are significant even where the negative impacts are currently difficult to measure, since negative perceptions associated with an 9 1-110 area can lead to disinvestment in residential neighborhoods and economic decline because of a tendency to avoid such shopping areas. The analysis of criminal complaint data and property assessed valuation data was less conclusive than the surveys. RECOMMENDATIONS: The study concludes that it is appropriate to regulate adult entertainment establishments differently from other commercial establishments. Because of the negative impacts of adult uses in concentration, restrictions on the location of adult uses in proximity to residential areas, to houses of worship, to schools and to each other should be considered in developing adult use regulations. 11. LAND USE STUDY: Newport News, Virginia DATED: March 1996 12. LAND USE STUDY: Oklahoma City, Oklahoma DATED: March 3, 1986 OVERVIEW: This study contains the results of a survey of 100 Oklahoma City real estate appraisers. Appraisers were given a hypothetical situation and a section to comment on the effect of sexually oriented businesses in Oklahoma City. The hypothetical situation presented a residential neighborhood bordering an arterial street with various commercial properties which served the area. A building vacated by a hardware store was soon to be occupied by an "adult" bookstore. No other sexually oriented businesses were in the area and no other vacant commercial space existed. With less than a one month response time, 34 completed surveys were received by the city. FINDINGS: 32% of the respondents said that such a bookstore within one block of the residential area would decrease home values by at least 20%. Overwhelmingly, respondents said an "adult" bookstore would negatively effect other businesses within one block (76%). The level of depreciation is greater for residences than businesses. The negative effects on property values drop sharply when the sexually oriented business is at least three blocks away. In the subjective portion, 85% of the respondents noted a negative impact on sexually oriented businesses on Oklahoma City. Frequent problems cited by the appraisers included the attraction of undesirable clients and businesses, safety threats to residents and other shoppers (especially children), deterrence of home sales and rentals, and immediate area deterioration (trash, debris, vandalism). CONCLUSIONS: Oklahoma City's findings supported results from other national studies and surveys. Sexually oriented businesses have a negative effect on property values, particularly residential properties. The concentration of sexually oriented businesses may mean large losses in property values. 10 1-111 13. LAND USE STUDY: Phoenix, Arizona DATE: May 25, 1979 OVERVIEW: The study examines crime statistics for 1978 comparing areas which have sexually oriented businesses with those that do not. The results show a marked increase in sex offenses in neighborhoods with sexually oriented businesses, with modest increases in property and violent crimes as well. Three study areas (near locations of sexually oriented businesses) and three control areas (with no sexually oriented businesses) were selected. The study and control areas were paired according to the number of residents, median family income, percentage of non-white population, median age of population, percentage of dwelling units built since 1950, and percentage of acreage used for residential and no-residential purposes. CRIME: Three categories of criminal activity were included in the study: property crimes (burglary, larceny, auto theft), violent crimes {rape, murder, robbery, assault), and sex crimes (rape, indecent exposure, lewd and lascivious behavior, child molestation). Average results from ali three study/control areas, sex offenses were 506% greater in neighborhoods where sexually oriented businesses were located. (In one study area, sex crimes were more than 1,000% above the corresponding control area.) Property crimes were 43% greater. Violent crimes were only slightly higher (4%). Even excluding indecent exposure arrests (the most common sex offense), other sex crimes (rape, lewd and lascivious behavior, child molestation) in the study areas were 132% greater than control areas. REQUIREMENTS: The Phoenix ordinance requires sexually oriented businesses to located at least 1,000 feet from another sexually oriented business and 500 feet from a school or residential zone. Approval by the city council and area residents can waive the 500 foot requirement. A petition which is signed by 51% of the residents in the 500 foot radius who do not object must be filed and verified by the planning director. 14. LAND USE STUDY: Seattle, Washington DATED: March 24, 1989 OVERVIEW: The report concerns a proposed amendment to add topless dance halls to existing land use regulations for "adult entertainment establishments." Seattle had eight such dance halls {termed "adult cabarets"), six established since 1987. The study relies on reports from a number of cities, including Indianapolis, Los Angeles, Phoenix, Austin and Cleveland. 11 1-112 FINDINGS: The increased number of cabarets resulted in citizen complaints, including phone calls, letters (from individuals and merchant associations), and several petitions with hundreds of signatures. Protests cited decreased property values; increased insurance rates; fears of burglary, vandalism, rape, assaults, drugs, and prostitution; and overall neighborhood deterioration. The report notes that patrons of these cabarets most often are not residents of nearby neighborhoods. Without community identity, behavior is less inhibited. Increased police calls to a business, sirens, and traffic hazards from police and emergency vehicles are not conducive to healthy business and residential environments. RECOMMENDATIONS: Since city zoning policy is based on the compatibility of businesses, the report recommends that the cabarets locate im the same zones as "adult motion picture theaters." This plan allows about 130 acres for such businesses to locate throughout the city. 15. LAND USE STUDY: Times Square (New York City), New York DATE: April 1994 OVERVIEW: This study commissioned by the Times Square Business Improvement District ("TSBID") evaluates the effect of adult use businesses on the city's TSBID, and more specifically, on the areas within the TSBID where such businesses are densely concentrated. The study combined analysis of available data on property values and incidence of crime with a demographic and commercial profile of the area to determine the relationship between the concentration of adult use businesses and negative impacts on businesses and community life. The study also included 54 interviews conducted with a broad range of diverse business and real estate enterprises, including major corporations, smaller retail stores, restaurants, theatres and hotels, as well as Community Boards, block associations, activists and advocates, churches, schools and social service agencies. REAL ESTATE: This part of th,e study compared the assessed property values over time, and the rate of change, of four study blocks and contrasting control blocks where no adult use businesses existed. This analysis also compared the study and control blocks' assessed valuation to that of the TSBID, Manhattan, and the city as a whole. The rate of increase of the total actual assessed values of the study blocks between 1985 and 1993 was less than the rate of increase for the control blocks during the same period. An assessment of the study blocks also revealed that the- rates of increases in assessed value for properties with adult establishments was greater than the increase for properties on the same blockfront without adult establishments (possibly because of greater rents paid by some adult establishments). A high official in the Department of Finance indicated that the presence of adult use businesses adversely affects neighboring properties since 12 1-113 such presence is factored into the locational aspect of the appraisal formula. CRIME: This part of the study compared the number of criminal complaints over a three month period for the study blocks and the control blocks. There were about twice as many criminal complaints for the study blocks as the control blocks. There was a reduction in criminal complaints the further away from the study block area of dense concentration of adult use businesses. The heaviest incidence of prostitution arrests also occurred in the study block area of dense concentration of adult use businesses. The study also noted that police statistics showed a decrease in crime in Times Square for the past five year period, which paralleled the decrease in the number of adult use businesses. INTERVIEWS: Property and business owners expressed the view that adult use businesses have a negative effect on the market or rental values of businesses located in their vicinity, and emphasized the negative effects of a concentration of such businesses in affecting the overall image of the area. Restaurant owners expressed that the presence of adult use businesses was not good for their businesses, created a perception that the area was unsavory, made it difficult to book corporate parties, and negatively affected their businesses because of the flamboyant advertising. Community residents and organizations expressed their belief that adult use businesses attract loiterers, drug dealers,. and prostitutes, and result in increased instances of criminal activity. 16. LAND USE STUDY: Tucson, Arizona DATED: May 1, 1990 OVERVIEW: This report is a memorandum from Police Department Investigative Services to the City Prosecutor describing events and activities at "adult entertainment bookstores and establishments" that support stronger ordinances. Investigation had been in progress since 1986 following numerous complaints of illegal sexual activity and unsanitary conditions. FINDINGS: Officers found a wide variety of illegal sexual conduct at all adult businesses. At virtually every such business, employees were arrested for prostitution or obscene sex shows. Dancers were usually prostitutes where, for a price, customers could observe them performing live sex acts. At several businesses, customers were allowed inside booths with dancers and encouraged to disrobe and masturbate. Many times, dancers would require customers to expose themselves before they would perform. Underage dancers were found, the youngest being a 15 year old female. Within peep booths, officers found puddles of semen on the floor and walls. If customers had used tissues, these were commonly on the floor or in the hallway: On two occasions, fluid samples were collected from the booths. In the first instance, 21 of 26 13 1-114 samples (81 %) tested positive for semen. In the second sampling, 26 of 27 fluid samples {96%) tested positive for semen. "Glory holes" in the walls between adjoining booths facilitated anonymous sex acts between men. RECOMMENDATIONS: (1) The bottom of the door in peep booths must be at least 30 inches from the floor so that an occupant can be seen from waist down when seated; {2) the booth cannot be modified nor can a chair be used to circumvent the visibility of the client; (3) employee licensing that includes a Police Department background check; and (4) in the event of a denied or revoked license, the requirement of a hearing before any action is taken. 17. LAND USE STUDY: Whittier, California DATE: January 9, 1978 _ . OVERVIEW: After experiencing a rapid growth of sexually oriented businesses since 1959, the Whittier City Council commissioned a study of the effects of businesses on the adjacent residential and commercial area. At the time of the study, Whittier had 13 such businesses: six model studios, four massage parlors, two bookstores, and one theater. Utilizing statistics, testimonies, and agency reports, the study compared two residential areas and four business areas over a span often years (1968-1977). One residential area was near the largest concentration of sexually oriented businesses, the other had no commercial frontage but was chosen because of similar street patterns, lot sizes and number of homes. For businesses, Area 1 had six sexually oriented businesses, Area 2 had one, Area 3 had three, and Area 4 had none. 1973 was selected as the year to compare before/after effect of these businesses. Two chief concerns cited in the report are residentiaUbusiness occupancy turnover and increased crime. OCCUPANCY TURNOVER: After 1973, 57% of the homes in the sexually oriented business area had changes of occupancy, compared to only 19% of the non- sexually oriented business area. Residents complained of "excessive noise, pornographic material left laying about, and sexual offenders (such as exhibitionists) venting their frustrations in the adjoining neighborhgod." Citizens also expressed concern about drunk drivers coming into the area. Business Area 1, with the highest concentration of sexually oriented businesses {6), experienced a 134% increase in annual turnover rate. Area 3, with three adult businesses at one location, showed a 107% turnover rate. Area 2 (with one adult business) had no measurable change and Area 4 (with no commercial or sexually oriented businesses) experienced a 45% decrease in turnover from similar periods. CRIME: The city council looked at the two residential areas for the time periods of 1970-73 (before sexually oriented businesses) and 1974-77 (after such businesses). In the sexually oriented business area, crinunal activity increased 102% (the entire city had 14 1-115 only an 8.3% increase). Certain crimes skyrocketed (malicious mischief up 700%; all assaults up 387%; prostitution up 300%). All types of theft (petty, grant, and auto), increased more than 120% each. Ten types of crime were reported of the first time ever in the 1974-77 period. RECOMMENDATIONS: The council's report recommended a disbursement type ordinance that prohibits sexually oriented businesses closer than 500 feet to residential areas, churches, and schools. Distances between such businesses was recommended at 1,000 feet. In addition, the study proposed a 1,000 foot separation from parks because of their use by citizens after normal working hours. Sexually oriented businesses would be given an 18-36 month amortization period (if the change involved only stock in trade, a 90 days period was recommended). 15 1-116 DAVID BEJARANO Chief, Chula Vista P.D. EXPERIENCE CITY OF CHULA VISTA, POLICE DEPARTMENT On Tuesday, September 1, 2009 David Bejarano was sworn in as the City of Chula Vista's 23rd Chief of Police. Chief Bejarano leads a department of 240 sworn law officers and 90 civilian employees, plus more than a hundred volunteers. He oversees a budget of 44 million dollars and provides law enforcement services to a community of 240,000 people, the second largest city in San Diego County. Chula Vista is home to the 2009 Little League World Series Champion Park View Little League, U.S. Olympic Training Center, Cricket Wireless Amphitheater,. the Chula Vista Nature Center, J Street Harbor, the Third Avenue Village and Knott's Soak City. Downtown Chula Vista hosts a number of cultural events; including its Cinco de Mayo celebration, Lemon Festival and Holiday Starlight Parade. INTERNATIONAL SECURITY CONSULTANTBUSINESS OWNER Based on Mr. Bejarano's extensive experience and expertise in dealing with trans-national crime, he has partnered in the past with several security organizations to provide security consulting services for foreign owned companies operating in Mexico. Security services provided include: site security assessments, executive protection, security director/crisis management training, and security backgrounds. Bejarano is also aFounder/Director of Vibra Bank, a community bank based in Chula Vista, CA. UNITED STATES MARSHALS SERVICE On April 10, 2003, Mr. Bejarano was appointed the United States Marshal for the Southern District of California, by President George W. Bush. The Marshals Service is the nation's oldest and most versatile Federal law enforcement agency, involved in virtually every law enforcement initiative. Mr. Bejarano chaired the California Border Alliance Group, a program initiated by the President's Office of the National Drug Control Policy known as HIDTA (High Intensity Drug Trafficking Area) and the Southwest Border HIDTA Executive Board. The HIDTA program provides infrastructure support for the investigation of international trafficking organizations. Under Marshal Bejarano's leadership the San Diego County Regional Fugitive Unit was expanded by 50%. Mr. Bejarano also served on various national U.S. Marshals Service Policy Committees. CITY OF SAN DIEGO, POLICE DEPARTMENT Chief Bejarano joined the San Diego Police Department (SDPD) in 1979 and on April 26, 1999, was sworn in as San Diego's 34`i' Chief of Police. Chief Bejarano provided progressive leadership for 2000 sworn officers, 700 civilian support personnel and 1,000 police volunteers. Chief Bejarano was responsible for an annual budget of $262 million and for providing police services to aver 1.3 million persons. The City of San Diego was recognized at state and national levels as one of the safest large cities in the U.S. and for successfully hosting major national events such as Super Bowl XXXII and XXXVIII, and the Republican National Convention. During his tenure with the San Diego Police Department, he had several vice related assignments, including as a detective investigating unlawful activity at sexually oriented businesses; was the Vice Commander responsible for officers who conducted such investigations; and, as Chief of Police, he was responsible for the licensing of such businesses. CAREER HIGHLIGHTS Mr. Bejarano established one of the nation's first full-time Elder Abuse Units and Drag Racing Enforcement Units; created a partnership with the City Attorney's Office to establish the nationally recognized Family Justice Center (one-stop shop for addressing domestic violence); and also created the Neighborhood Prosecution Program. Under Chief Bejarano's tenure, SDPD was recognized as the leader in expanding the use of less-than-lethal equipment, addressing racial profiling and enhancing Neighborhood Policing. Mr. Bejarano is a nationally recognized expert in police/community partnerships, major event security planning, and trans-national crime. COMMUNITY/PROFESSIONAL SERVICE AWARDS Over the course of his public service and currently, he serves on a number of community based organizations and local and national law enforcement organizations. Additionally, he was appointed by the Governor of California to 1-~ 17 ATTACHMENT 5 represent California Chiefs on the Governor's "California Emergency Council", and was selected and served on Lt. Governor Cruz Bustamante's "Commission One California." Mr. Bejarano also served on the Police Executive Research Forum Board of Directors. He was recently appointed to the IACP Executive Committee representing California and Hawaii law enforcement. Mr. Bejarano has been the recipient of numerous awards, including being recognized as one of San Diego's "50 Persons to Watch" (2000); one of the nations "100 Most Influential Hispanics" (1999); San Diego "Diogenes Award" for candor and professionalism in dealing with the news media (2000), and the San Diego Mediation Center's "2003 Peacemaker Award." PERSONAL Mr. Bejarano is a native of El Paso, Texas, earned a Bachelor of Arts degree in Business Administration from National University and served in the U.S. Marine Corps prior to his law enforcement career. He and his wife, Esperanza have three children: Marisa, Yvonne, and Michael. ~-~~$