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HomeMy WebLinkAbout2012/11/01 Additional InformationSet 2 -Proposed Changes to Urgency Ordinance 11/01/12 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 hwnan 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 Areus" means and includes: 1. Less than completely and opaquely covered: human genitals; pubic region; buttock; and female breasC below a point immediately above the top of the areola; and 2. I-luman male getutals in a discernibly hirgid 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); Pandering offenses set forth in California Penal Code § 266(1); 4. Any offense described in California Penal Code §§ 311 (311(x) 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 647~b~; Sex offenses requiring registration under California Penal Code § 290; 8. An offense involving the unlawful possession for sale sales, furnishine or ~ivin~ of or transportation of a C-controlled substance including but not limited to, the following offenses described in California Health and Safety Code §§ 11064, l 1033, 1 106, 11057, 11058, 11171,1-33~1Lid1, 11351.5, 11352, }-13-53-1 1 3 57.5, 1]359, 11360, 11375, 4~-7-7, 11378, 11378.5, or 11379,-_" `-r.~-e~ 'moo; or ~Z~ ~~ Set 1 -Proposed Changes to Urgency i3. Ordinance I1/O1/ll 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. ~~ e 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 th~ percent (~-9~Q%) 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, etc.) in a legal entity which operates or has aten-pereerrfthir~y percent (~19~Q%) or more ownership interest in the sexually oriented business. R. "I ieensee" 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. "Nori 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. 18 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 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 armless than two (2) years have elapsed since the date of conviction orthe 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; 19 4. A signed and verified statement that the 1'^°~^° ^^^'~^^^`, ~` ^^ > > thatfilie-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 performers and_non- performers, which includes the rerformer's/non-performer's legal name, and mailing address, and satisfactory written proof that each ~ r onn r 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 n each rmet shall provide the license applicant with a signed and verified statement that the non-performer rf rmer has not pled guilty or pled polo 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 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. 22 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. 4. The required application fees have been paid. a ~- a• c nl~nznai ~ a 5. The applicant, ... .......... ._.. .,ac non- performerworking in a managerial capacity and ~aeh_nerform~r 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 frorn 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 famish 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 25 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. The Director shall not be bound by the formal rules of evidence. 3. Any hearing under this section maybe 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 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 i-tre~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. 26 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 to 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 a specified criminal activitL+ ~«° ~F-~7 ~.c olloW inson the premises of the sexually oriented business or has been convicted of a specified criminal activity. '~ ~ h~~ b~~-- • . .i F 1 «• Ftl, F 11.....:«...,4.,ko 1,,...~ .... •l,o ,.F a4.o ..,Il., p J o b~s-~a lis~nse revocation is overiumed or reversed on anneal. that conviction shall be treated a null and of no effect for revocation rournose~. a D FF « o ....4 F .-vl, :« !`..I:F ,..,:., Do«.il !'.~: s r,,,~Q ~~((y,, a ~Y °°OC~ ''~~~~''..\\ B D a «FC a of F .rtl.:« !'., l:f ~ Dom. .i A FF ., .7 e., :l.e.i :« ('`..1:4:..-.,:.. Do«~7 ('~dn_Sf. 111 u rzt t ~~ nc, e A~f..«a..~ ..«a z t z iu~r.ns,1~R e r a a >, a. FF ~ t, . > > r t'F D t r ae a ztn. r f s e i ~ ~, ., 1, !` Il .7 1. • FF .1 '1 .7 ' !'..1:F ., i7o..1~1, e e s e > e z2. 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 27 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. Tl, F • al.,.E ., 1 ..~ .. ,.ti ., l .e X10.7 ..1...11 l.n oFf ~t n« 41nu e f 11 «A ,.F« eFFo..~ r ..ti ,. 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: 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. 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 (t 0) 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. 28 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 business 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 Iicense. 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. C. In the event of a transfer of a sexually oriented business ^~~- a e~n~~ °~+ a'-••°~~°°°'~^°^°°, 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.~f the annlication is eranted. the sexually9ri~ b siness license shall be transferred to the new owner 9.13.100 Operating standards. 29 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 andlor 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. 9.13.110 Violations. A. Any owner, operator, manager, employee er-independent-eerrtraEte~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 9.13.1 10A, 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. 35 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: 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 Violations 213.240 Severability. 36 D. After holding the hearing in accordance with the provisions of this section, ifthe 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. cumulative and not exclusive Anv violation of these nrovisions~shall constitute a ~narate violation for each and every day durine which such violations c~mmitte ~r continued, h re ebv declared to constitute a~nublic nuisance and may be abated or.en'tomed• 47 9.13.230 Violations. C The_re~trictions imposed ours an this section are art of a reeulatorv 9.13.2.40 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 he 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. 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']. EFFECTIVE DATE/URGENCY. 48 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: Department of Development Services Approved as to form by: Glen R. Googins City Attorney 1992107.4 nnn Bann ,... ini~moa ~-r nrR .11/1/2012 4:26,PM ._ _ ~„ 49 Set 2 -Proposed Changes to Non-Urgency Ordinance 11/01/12 primarily for the stimulation of human genital orgvrs 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); 3. Pandering offenses set forth in California Penal Codz § 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 Penai Code §§ 315, 316, 318 or 647(b~; Sex offenses requiring registration under California Penal Code § 290; 8. An offense involving the unlawful yossession for sale, sales, furnishing or giving_of, or transportation of a e6ontrolled substance, including, but not limited to, the following offenses "`described in California Health and Safety Code §§ 11054, 11055, 11056, 11057, 11058, 11171, "11351, 11351.5, 11352,-333. 11357.5, 11359, 11360, 11375, "11378, 11378.5, or 11379, "~'-~0;~-1~°0; 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. ~~~ Gi. Set 1 -Proposed Changes to Non-Urgency Ordinance 11/O]/12 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 riotice 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 fmds 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 .~. 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 htht irtv percent (38~%) 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, etc.) in a legal entity which operates or has a terrthirty percent (1830%) 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 maybe 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 bz+stness" 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," 18 "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 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 armless than two (2) years have elapsed since the date of conviction or the date 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); Pandering. offenses set forth in California Penal Code § 266(1); 19 2. The transfer of an interest which constitute an "influential interest" in the business, whether by sale, exchange, assignment, pledge or similar means; or 3. 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 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 Iisertse-app"^^.~a==fro= 21 ili,~t~e-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 performers and non- performers, which includes the performer's/non-performer's legal name, and mailing address, and satisfactory written proof that each erform r/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 and each e orm r shall provide the license applicant with a signed and verified statement that the non-performer/performer has not pled guilty or pled polo 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 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. 22 3. The license applicant is at least eighteen (18) years of age. 4. The required application fees have been paid. 5. The applicant ^ a°F^^a '^ c°^.:°., n i ~ non a 7 ~ °..a each non- performer working in a managerial capacity and each performer 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 perrnittee, 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, iiom 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: 25 1. All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The 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 shalt 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. 4. The Director's decision may he appealed in accordance with Municipal Code § 9.13.080. B. A license may be suspended or revolted 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 eon 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. 26 7. That the transferee/new owner of a sexually oriented business or sexually oriented business regulatory license failed to 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 a specified criminal activity °~-~ ^F*"° F^"^--~~~° on the premises of the sexually oriented business, or has been convicted of a specified criminal activitv.; ^- ° '~^°~°°° "°° "°°° ,.....: ,.+°A ,.F..: ^7...:.. ,..,.,. ^F«6° F..11.....:..^ ~+°r° 1~...~ ..., «h° ,...°...;~°~ .,F «l.° ~°..,t°Ll~ eriented-business= The fact that anv relevant convictiot%is_Fzeine annealed shall have no effect on the revocation of the license provided that if anv conviction which serves as a basis of a license revocation is overturned or reversed on anneal that conviction shall be t~e~a~ed a~~t11_and of no effect for revQca ion~ur~osea, a. D°..° ..F4e....°~ ..°+ r ..'" :., r~.,l:c «.,:., D°~°1 r~^,a° >; ~~1 [ 1}. D:......:..,... ,.1:,.:ti.......FF„«,...,. ~.,+ F...-«l.:.. n..1: F......:.. D°....1 r^a 6. i~a'.i[dc°r ,. FF. ..,..... et t ««" r~....l~C ....~ De ~l !'~A° R d. n.... ^FF .,,.° .1 °,...«:1.°.7 :., n,.l: r^....:., D°., .,1 r^a° P>; Z 11 ~' ," f. /~°..,1.1:...... ....«;«.. «:......FF ....°....°+ {;..wl.:.. l~., 1:F '.,:.. D°..°1 e e f C°....FF ....°.. « ;~«.~ti.... , .,d°.- f'.sli£~,.-ni., D°....1 LL a.a u Tt. /~^.,a.^11.,.1 .,..1.,.«....,.,. ,. FF,... n,.n a°~~«:1..,.] :.. !'..1: F......:., LT.,..1 «I. «A c°F°+.. f`..A.. CC 11 ncA 11l1[C 11l1Cti 1111G7 11!1[4 ills L~r_LLCQ~ox o a > o e z-r.~iv, v. ~2• 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, 27 obstruct traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property. C. After holding the hearing in accordance with the provisions of this section, if the Director fmds and determines that there are grounds for suspension or revocation, the Director shall impose one of the following: 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. 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 maj ority 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. 28 E. Notwithstanding ariy 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, in s 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. C. In the event of a transfer of a sexually oriented business ~•~-~he~:al=y „~ent~d-b <si;~e~~'.?ce: ~.., 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. If the aonlication is eranted the sexually oriented business license shall be transferred to the new owner. 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 29 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. 9.13.110 Violations. A. Any owner, operator, manager;_or employee f a sexually oriented business violating or permitting, counseling, or as"sisting 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 9.13.1 IOA, 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 Cbapter 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 Conftguration Requirements. Any preexisting sexually oriented business that is required to, but does not, have interior configurations or stages that meet 35 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: 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/suspensionJdenial 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 Violations 9.13.240 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 36 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 sha1L 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 Violations. continued. B In addition to t1 e remedies set forth in section 9.13.220. anv.violation off' 9.13.240 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 47 for violations of the provisions of this ordinance related to sexual conduct or acUvrties ---- --1 ~, ~~;~ .~ tF.~:` r AN ORDINANCE REGULATING THE LICENSING AND OPERATIONAL STANDARDS FOR SEXUALLY ORIENTED BUSINESSES AND PERFORMERS E pay ~ C~~ C~o~~6~ ~ too C~~ ~ C~I~d0~ o-oo dof~~ o o ~ 0 L9J U L5 633 West Fifth Street, Suite 1700 Los Angeles, CA 90071 213.626.2906 www.meyersnave.com ©2011, Meyers Nave Riback Silver & Wilson. All rights reserved. ~ ~ 1/ ~ ~ g ~ $ professional low <erporation .; Purpose and Intent of Proposed Amendments ~~) Update and refine the City's permitting regulations as to sexually oriented businesses (SOB) and licensing of performers; -- (2> Mitigate and reduce the judicially recognized potential adverse secondary effects of adult businesses including crime, neighborhood blight, and the spread of sexually transmitted diseases; (s) Protect quality of life and neighborhoods in the City, the City's retail and commercial trade, local property values, and minimize the potential for nuisances related to the operation of adult businesses; meyers professional nave low corporation Purpose and Intent (continued) ~4> protect the peace, welfare and privacy of persons who own, operate and/or patronize adult businesses; and ~s> minimize the potential for nuisance related to the operation of adult businesses. m e ers y (nave professional low carparaiion Legal Basics/ 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). m e ers y l nave protessionol low <arpora~ion Legal Basics/ Constitutional Constraints cont. • As providers of protected First Amendment speech, the courts have uniformly ruled that these types of adult businesses cannot be banned. • Adult businesses can be regulated. • May impose reasonable time, place and manner restrictions. meyers i nave professional law corporation Legal Basics/ Constitutional Constraints cont. • Content neutral regulations versus content based restrictions • Content neutral provisions are aimed at protecting governmental interests unrelated to speech content • Instead are focused on regulations that are applied to all types of commercial uses for purposes of furthering the public health, safety and welfare - such as traffic restrictions, noise limitations. meyers i nave professional law corporation Permitting and Operational tandards (~) Restricting hours of operation; (2> Lighting requirements (interior and exterior); (s> Precluding direct touching between patrons and performers of live sob entertainment establishments; (4> Requiring that performers and patrons maintain a six (6) foot distance separation; (5) Precluding direct tipping and/or payment for live sob performers; meyers i nave prof essianol low corporotion Permitting and Operational Standards cont. ~6> Requiring a fixed stage with a barrier or rail; ~~~ Separate entrances; ~$> Separate restrooms; ~9> No doors on adult video arcade booths; and ~~o> Unobstructed view of the interior of the premises of an adult use business. meyersinave professional low corporation