HomeMy WebLinkAboutOrd 2012-3239ORDINANCE NO. 3239
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 '.or sexually oriented businesses that aze in need of updating and refinement. The City
Council takes legislative notice of the full complement of supporting evidence as to the
secondazy 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 standazds for adult
businesses operating with the City of Chula Vista ("the City"). The public health, safety and
welfaze 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 necessazy 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.
Ordinance No. 3239
Page No. 2
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, Califomia (1991); Seattle, Washington (1989); Houston, Texas (1997); Phoenix,
Arizona (1979); Tucson, Arizona (1990); Chattanooga, Tennessee (2003); Los Angeles,
California (1977); Whittier, Califomia (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 Squaze (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); "Con•elates 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 aze 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, aze
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 aze not regulated with operating standards often have a
deleterious effect on neazby businesses and residential areas, causing, among other adverse
secondazy 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.
Ordinance No. 3239
Page No. 3
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); Ciry 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 Liguor Authority v. Bellanca, 452 U.S. 714 (1981); Sewell v. Georgia, 435
U.S. 982 (1978); FW/PBS, Inc. v. City ofDallas, 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 Rid 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. Pity. 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 ~; Baby
Tam & Co. v. Las Vegas, 199 F.3d 1111 (9th Cir. 2000) (Baby Tam I~; 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 Simf Valley, 216 F.3d 807 (9th Cir. 2000), cert.
denied 531 U.S. 1104 (2001); A805 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. 7984).
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 (ath 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
Ordinance No. 3239
Page No. 4
Fed.Appx. 541 (6th Cir. Sept. 7, 2011); Flanigan's Enters., Inc. v. Fulton County, 596 F.3d 1265
(11th 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 Rid 702 (7th Cir. 2003); SOB, Inc. v. County of Benton, 31'7 F.3d 856 (8thCir.
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 c~ 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); Yeek-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 (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. C'iry 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 Parry 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 Cal.App.3d 807 (1989); 7978 Corporation v. Pitches, 41 Ca1.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 Ciry 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.
G. The City Council also finds that locational criteria alone do not adequately protect
the health, safety, and general welfaze 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:
Ordinance No. 3239
Page No. 5
(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
regazding 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, aze
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 HN, 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.
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 Summazy 2000, County of Orange
Ordinance No. 3239
Page No. 6
Health Care Agency, issued July 2002 ("Communicable Disease Summary") and the HIV/AIDS
Surveillance Statistics, 2003 also issued by the County of Orange Health Caze 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 azeas 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, prepazed 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 aze relevant to the
experiences of Chula Vista, which is located in the midst of this lazge urban area.
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 azeas 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 occumng in sexually oriented businesses.
3. Requiring separations between performers and patrons precludes them
from being within eazshot to communicate and thereby reduces the likelihood that such persons
will negotiate nazcotics 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.
Ordinance No. 3239
Page No. 7
1. With respect to booths, these findings include the following: The inside
walls of the booth aze 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 particulaz booth. In
some instances, this arrangement has been used for the solicitation of prostitutes. Many of these
booths aze 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 secondazy effects associated with closed
booths. Specifically, the provisions pertaining to booths aze 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 Cal.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) Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999), including
the Court's finding that "ample evidence ... supports the ... finding that illegal and unhealthy
activities take place in small rooms at adult entertainment establishments."
Ordinance No. 3239
Page No. 8
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, Bert: denied 126 S.Ct. 374; Tily B.
v. Ciry 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, 10'7 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 aze 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 Ilabra, 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 guazd against the documented secondazy 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 sepazate 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.
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)
yeazs 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. Ciry of West Allis, 936 F.Supp. 1479, 1487 (E.D. Wis.
1996); Club Southern Burlesque, Inc., 265 Ga. at 532. In this regazd, the City Council, in
adopting operational standazds, 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 secondazy 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 Dejk Vu of
Ordinance No. 3239
Page No. 9
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 a 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, "the bamng 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 a sexually oriented business
regulatory licensing process and operational standards for sexually oriented businesses aze
legitimate and reasonable means of ensuring that:
1. Operators of and performers at sexually oriented businesses comply with
the City's regulations;
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 Chula Vista.
Ordinance No. 3239
Page No. 10
T. The City Council, in adopting operational standards, recognizes that these
standazds 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 oi' communication. Additionally, the City
Council takes note that numerous web-based services, such as www.sugazdvd.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:
"SugazDVD has made it so easy to rent and view adult movies, you may never leave your house
again ... SugazDVD is discreet with quick turnaround times and a massive selection ...
SugazDVD offers six rental plans, catering to the casual porn viewer and diehazds who can never
get enough hazd-core fare." (Hustler Magaaine, 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 billboazds acknowledging that the Internet is one available
channel of communication]; US. v. Hocktngs, 129 F.3d 1069 (9th Cir. 1997); see also US. 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 Tezas, 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 Jacksonville, 176 F.3d
1358 (11th Cir. 1999); Lady J. Lingerie, Inc. v. City of Jacksonville, 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 (]st 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 aze negatively impacted by 24-hour-a-day or late night
Ordinance No. 3239
Page No. 1 l
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 Effect; in San Diego, California, by
Daniel Linz et al. (2004) and Do Peep-shows "Cause" Crime? A response to Linz, Paul, and
Yao, by Richazd McCleary ei al. (2006). Based on these cases, re,vrts and analyses, as well as
the findings of this ordinance, ±he 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
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 azea 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
secondazy 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.
Ordinance No. 3239
Page No. 12
9.l 3.040. 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 procedurer;.
9.13.090. Transfer of sexually oriented regulatory license.
9.13.100. Operating standazds.
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
cleazly 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
regulaz 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 azeas." 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 aze chazacterized 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 aze 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.
Ordinance No. 3239
Page No. 13
D. "Adult Cabaret" means a business establishment (whether or not serving alcoholic
beverages) that features "adult live entertainment."
E. "Adult cabaret dancer" s~rall 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 iuvolve
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 regulaz 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
":;peciilcd 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 similaz 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 aze
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 materiaP' shall mean accessories, pazaphernalia, 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
"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."
Ordinance No. 3239
Page No. 14
L. "Characterized by," means describing the essential chazacter 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 employe+:, independent contractor, agent, lessee, or
otherwise. Employees shall include "cabazet 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 prcmises.
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 thirty percent
(30%) 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 thirty percent (30%) 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 regulaz 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.
Ordinance No. 3239
Page No. 15
- 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
gazages 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 similaz 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. "Specifzed 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 azeola; 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 (a) 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.
I. 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(1);
Ordinance No. 3239
Page No. 16
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 Califomia Penal
Code §§ 314, 647(x) or 647(d);
6. Gambling or prostitution offenses set forth in California Penal Code §§
315, 316, 318 or 647(b);
7. Sex offenses requiring registration under California Penal Code § 290;
8. An offense involving the unlawful possession for sale, sales, furnishing or
giving of, or transportation of a controlled 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, l 1357.5, 11359, 11360, 11375, 11378, 11378.5, or 11379; 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.
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 aoousal; 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 imgation;
and/or
6. Fondling or other erotic touching of human genitals, pubic region, buttock,
or female breast.
CC. "Transfer of Ownership or ControP' 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 similaz means; or
3. The establishment of a trust, gift, or other similaz legal device which
transfers the ownership or control of the business.
9.13.030 License required.
A. All sexually oriented businesses aze 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 Califomia. 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 standazds of this Chapter and the
requirements of the zoning or other land use provisions applicable to where the facility is
located.
Ordinance No. 3239
Page No. 17
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 applicant has not pled guilty or
polo 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 performer/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 performer
shall provide the license applicant with a signed and verified .statement that the non-
performer/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
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.
Ordinance No. 3239
Page No. 18
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. 1'he 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
inunediately 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 th'e 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 heazing 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 heazing with notice of such hearing to be made pursuant to California
Government Code §§ 65091 and 65905. Said public heazing 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 heazing
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 regazding 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.
Ordinance No. 3239
Page No. 19
- 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 appiication 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, al'i 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 strici 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.
L 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.
4. The required application fees have been paid.
5. The applicant, 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 petmittee, 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.
Ordinance No. 3239
Page No. 20
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. Heazings pursuant to this section shall be noticed in accordance
with California Government Code §§ 65091 and 65905 and conducted by the Director or his/her
designer, which may include a third party heazing 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
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 standazds
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 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 to comply with the requirements of this Chapter.
Ordinance No. 3239
Page No. 21
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
on the premises of the sexually oriented business, or has been convicted of a specified criminal
activity. 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
9. 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 traffiq 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 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.
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.
Ordinance No. 3239
Page No. 22
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. 1'he time for a court challenge to a decision of the City Ccuncil is governed by
California Code of Civil Procedure § 1094.8.
H. Nutice of the City Council's decision and its tlndings 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 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, 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 application is granted, 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 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.
Ordinance No. 3239
Page No. 23
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 azeas, including parking lots, of the
sexually oriented business shall be ilhuninated at a minimum of 1.50 foot candle, maintained and
evenly distributed at ground level with appropriate devices to screeri, 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. lnoperable
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 sepazate 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 aze 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 (l 8") 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 azea in which the
performer is viewed by an individual by a permanent, floor to ceiling, solid barrier.
Ordinance No. 3239
Page No. 24
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
cabazet dancer.
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 cabazet .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 azea, buttocks, cleft of the buttocks, perineum, anal region, or female
breast with any part or azea of any other person's body either before or after any adult live
entertainment or off stage performances by such performer or adult cabazet 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 sepazation 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 azeas.
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 anentrance/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 aze completely separated from the patrons. If such
sepazate 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 bazrier separating the patrons and the performers capable of (and which
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.
Ordinance No. 3239
Page No. 25
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 guazd
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 ;xs 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 guazd(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 azeas 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;
b. Have a continuous main aisle alongside the seating azeas in order
that each person seated in the hall or auditorium azea 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)
yeazs 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
Ordinance No. 3239
Page No. 26
business, employees of the sexually oriented business must be at least twenty-one (21) yeazs 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 chazge 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) yeazs 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) yeazs of age. It shall be unlawful for any person with influential interest, manager or other
person in chazge 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 chazge 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 caze 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) yeazs of age. If an establishment that is not otherwise prohibited from
providing access to the establishment to persons under eighteen (18) yeazs 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 chazacterized by an emphasis
on depicting or describing specified sexual activities or specified anatomical azeas, 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 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 sepazate 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 declazed 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.
Ordinance No. 3239
Page No. 27
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
nnmcompliance 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 orienied 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
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 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.
Ordinance No. 3239
Page No. 28
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 al which the applicant intends to work.
6. Driver's license or identification number and state of issuance.
7. Social security number.
8. Satisfactory written proof that the license applicant is at ]east eighteen (18)
years of age.
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 cleazly 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 detenmines 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.
Ordinance No. 3239
Page No. 29
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.
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 temporazy 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 t?ruporary 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 a 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.
Ordinance No. 3239
Page No. 30
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 a 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 sexuallyoriented business regulatory license.
4. The license applicant, has pled guilty, nolo contendeie 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 heazing 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 heazing 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 applicanUlicense holder. Such notice shall set forth the time and place of
a heazing 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 applicanUlicense 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 applicanUlicense 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
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 heazing 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 applicanUlicense holder, or shall be delivered
to the license holder personally, at least ten (10) days prior to the hearing date.
Ordinance No. 3239
Page No. 31
C. The applicant shall have the right to offer testimonial, documentazy, 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 ccntinuances sought by a
license holder/appellant shad 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
heazing officer is governed by California Code of Civil Procedure § 1094.8.
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
cabazet 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.
Ordinance No. 3239
Page No. 32
9.13.180 Sexually oriented business performer license nontransferable.
No sexually oriented business performer license may be 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
revocatio»/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
violatoh 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 declazed to
constitute a public nuisance and may be abated or enjoined.
C. The restrictions imposed pursuant to this section aze 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.
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 polo 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
Ordinance No. 3239
Page No. 33
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. 1'he Chief of Police or his/her designee must he 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.
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.
Ordinance No. 3239
Page No. 34
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.
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 9.13.27.0.
G. Failure of the Chief of Police or his/her designee to reader 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. ] 3.220.
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 heazing 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 heazing 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 heazing 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 heazing 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.
Ordinance No. 3239
Page No. 35
C. The applicant shall have the right to offer testimonial, documentazy, 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 applicant. Extensions of time or continuances. sought by arr
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..Atter 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. TheCity
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 heazing. 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.
A. Any license holder violating or causing the violation of any of these provisions
regulating sexually oriented business non-performer licenses shall be subject to license
revocation suspension pursuant to section 9.13.220 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 9.13.220, any violation of any of
these provisions regulating sexually oriented business non-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.
9.13.240 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 application of such sections and provisions
Ordinance No. 3239
Page No. 36
to any person or circumstances other than those to which it is held invalid, shall not be affected
thereby, and it is hereby declazed 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
CEQt~ Guidelines the actiorrproposed 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 7. EFFECTIVE DATE/URGENCY.
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 Pazagraphs A-
AA inclusive.
Presented by
Glen R. ~G ogins
rney
Approved as to form by
len R. ogins,
'ty Atto y
Ordinance No. 3239
Page No. 37
PASSED, APPROVED and ADOPTED at the special meeting of the City Council of the
City of Chula Vista, California, this 1st day of November, 2012, by the following vote:
AYES: Councilmembers: Aguilar, Bensoussan, Ramirez and Cox
NAYS: Councilmembers: NonF
ABSENT: Councilmembers: Castaneda
~.
Cheryl Cox, Ma r
ATTEST:
_~~~~~,~
Donna R. Norris, CMC, City Clerk
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CITY OF CHULA VISTA
I, Donna R. Norris, City Clerk of Chula Vista, California, do hereby certify that the foregoing
Ordinance No. 3239 was passed as an urgency measure on the 1st day of November, 2012.
Dated Donna R. Norris, CMC, City Clerk