HomeMy WebLinkAboutAGENDA REPORT 2007 1003 CC REG ITEM 08B8.B.
CITY OF MOORPARK, CALIFORNI4
City Council Meeting
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MOORPARK CITY COUNCILBY:���
AGENDA REPORT
TO: Honorable City Council
FROM: Barry K. Hogan, Deputy City Manager and
Richard Diaz, Special Projects Coordin o
DATE: September 26, 2007 (CC Meeting of 10/
SUBJECT: Consider 1) the Repeal of Ordinance No. 166, 2) the Approval of
Zoning Ordinance Amendment No. 2007 -03, to Amend Chapter 17.20
Table 17.20.060A1; Amend Section 17.24.040 by Adding Section
17.24.040N Adult Business Minimum Location Requirements; and
Amend Chapter 17.28 by Adding Section 17.28.050 Adult Business
Permit, and 3) an Amendment to Title 5 Business Taxes, Licenses
and Regulations, to Add Chapter 5.18 Adult Business Performer
Permit
BACKGROUND /DISCUSSION
On June 21, 1993, the City Council adopted Ordinance No. 166, establishing
regulations for Adult Entertainment Facilities. It was never codified into the Municipal
Code. Ordinance No. 166 no longer addresses the current state of the law regarding
adult businesses and needs to be updated. On September 25, 2007, the Planning
Commission held a public hearing on repealing Ordinance No. 166 and replacing it with
Zoning Ordinance Amendment No. 2007 -03. The Commission recommended approval
of this amendment to the City Council. The Planning Commission agenda report is
attached and made a part of this agenda report. In that agenda report it identifies the
need to establish location and operational standards for adult businesses in order to
protect the public health safety and welfare of the City and its residents. It reviews
reports prepared by various counties on the need for location and operational standards
and what is likely to result when such standards are not in place with a city.
An additional amendment to the Moorpark Municipal Code outside the purview of the
Planning Commission is included for City Council consideration, to amend Title 5
Business Taxes, Licenses and Regulations, by adding Chapter 5.18, Adult Business
Performer Permit. This Chapter would work in conjunction with the Zoning Ordinance
amendment and would complete the regulations for the operation of adult businesses.
If the adult business complies with the requirements of the Zoning Ordinance as to
location and operation, then a permit can be issued to a performer who complies with
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Honorable City Council
October 3, 2007
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the requirements of the new Chapter 5.18. A permit will not be issued to a performer
until the business location has been established in accordance with the Zoning
Ordinance requirements.
The Planning Commission also recommended that the City Attorney research to see if
the minimum time frame required for an owner or operator having pled guilty, nolo
contendere or been convicted be increased from the recommended three (3) years to
five (5) years. This is specifically referenced in Section 17.28.050F.j. If the City
Attorney recommends increasing the minimum time frame in this Section, it should also
be increased for adult performers in Chapter 5.18. Three changes from the Planning
Commission's recommendation are to delete "adult motel or hotel" from the definition of
Adult business in Section 17.28.0506., delete "except for an adult hotel or motel" from
Section 17.28.050F.2.a., and delete "Motels /hotels — 20 (in public places) from the
Interior lighting Section 17.28.050F.2.f. These deletions are recommended as a clean
up item since adult hotels and motels were deleted from an earlier version of the
ordinance. These deletions are shown as a strikeout in the attached ordinance
(Attachment 2). The City Attorney's office has reviewed and concurs with the language
in the attached draft ordinance (Attachment 2).
STAFF RECOMMENDATION
1. Open the public hearing, take public testimony and close the public hearing.
2. Introduce Ordinance No. for first reading, repealing Ordinance No. 166
and approving Zoning Ordinance Amendment No. 2007 -03. Schedule second
reading and adoption for October 17, 2007.
ATTACHMENTS:
1. September 25, 2007 Planning Commission Agenda Report (w /o attachment)
2. Ordinance No.
000016
MOORPARK PLANNING COMMISSION
AGENDA REPORT
TO: Honorable Planning Commission
FROM: David A. Bobardt, Planning Director
Prepared by Barry K. Hogan, Deputy City Manager and
Richard A. Diaz, Special Projects Coordinator
DATE: August 17, 2007 (PC Meeting of 9/25/07)
SUBJECT: Consider the Repeal of Ordinance No. 166 and the Approval of Zoning
Ordinance Amendment No. 2007 -03, to Amend Chapter 17.20 Table
17.20.060A1; Amend Section 17.24.040 by Adding Section 17.24.040N
Adult Business Minimum Location Requirements; and Amend Chapter
17.28 by Adding Section 17.28.050 Adult Business Permit
BACKGROUND
On June 21, 1993, the City Council adopted Ordinance No. 166, establishing regulations
for Adult Entertainment Facilities. It was never codified into the Municipal Code.
Ordinance No. 166 no longer addresses the current state of the law regarding adult
businesses and needs to be updated. The amendment before the Planning Commission
codifies adult business recommendations as new sections of Title 17 (Zoning) and repeals
Ordinance No. 166. The City Council will be considering the Planning Commission
recommendation on this Zoning Ordinance Amendment along with recommended changes
to Title 5 (Business Taxes, Licenses and Regulations) adding Chapter 5.18 (Adult
Business Performer Permit). The recommended changes to Title 5 are beyond the
authority of the Planning Commission and are not a part the proposed Planning
Commission resolution.
DISCUSSION
Ordinance No. 166 relative to adult businesses no longer is an effective tool for the City to
protect the public health, safety and welfare of the City and its residents. Consideration of
a new ordinance is required to establish operating and location standards for adult
businesses in order to: (1) mitigate and reduce the judicially recognized potential adverse
secondary effects of adult businesses, including but not limited to crime, the prevention of
blight in neighborhoods and the increased 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
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Honorable Planning Commission
September 25, 2007
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related to the operation of adult businesses; and (3) protect the peace, welfare and privacy
of persons who own, operate and /or patronize adult businesses.
There is substantial evidence that an increase in crime tends to accompany, concentrate
around, and be aggravated by adult businesses, including but not limited to an increase in
the crimes of narcotics distribution and use, prostitution, pandering, and violence against
persons and property. The studies from other cities establish by convincing evidence that
adult businesses that are not regulated as to operating standards often have a deleterious
effect on nearby businesses and residential areas, causing, among other adverse secondary
effects, an increase in crime and a decrease in property values. Regulations for adult
businesses should be developed to prevent deterioration or degradation of the vitality of the
community before the problem exists, rather than waiting for problems to be created.
In developing this ordinance, the staff is mindful of legal principles relating to regulation of
adult businesses. It is not the City's intension to suppressor infringe upon any expressive
activities protected by the First Amendment of the United States Constitution and Article 1
of the California Constitution but instead it is the City's desires to enact reasonable time,
place, and manner regulations that address the adverse secondary effects of adult
businesses. Staff has considered decisions of the United States and California Courts
regarding local regulation of adult businesses.
The location requirements established by this ordinance do not unreasonably restrict the
establishment or operation of constitutionally protected adult businesses in the City, and a
sufficient reasonable number of appropriate locations for adult businesses are provided by
this ordinance. Location criteria alone do not adequately protect the health, safety, and
general welfare of the citizens of the City, and therefore certain requirements with respect
to the ownership, operation and licensing of adult 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, there are 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.
This ordinance, in part, is based upon documents and judicial decisions in the public record-
1 . Evidence indicates that some dancers, models, performers, and other
persons who publicly perform specified sexual activities or publicly display specified
anatomical areas in adult businesses (collectively referred to as "performers ") have been
found to engage in sexual activities with patrons of adult businesses on the site of the adult
business.
2. Evidence has demonstrated that performers employed by adult
businesses have been found to offer and provide private shows to patrons who, for a price,
are permitted to observe and participate with the performers in live sex shows.
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Honorable Planning Commission
September 25, 2007
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3. Evidence indicates that performers at adult businesses have been
found to engage in acts of prostitution with patrons of the establishment.
4. Evidence indicates that fully enclosed booths, individual viewing areas,
and other small rooms whose interiors cannot be seen from public areas of the
establishment regularly have been found to be used as locations for engaging in unlawful
sexual activity.
5. As a result of the above, and the increase in incidents of HIV, AIDS,
and hepatitis B, which are sexually transmitted or blood borne diseases, the City has a
substantial interest in adopting regulations that will reduce the possibility for the occurrence
of prostitution and unlawful sex acts at adult businesses in order to protect the health,
safety, and well -being of its citizens. The City finds this is relevant to the experience of
Moorpark and the need to regulate the secondary effects of adult 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.
This ordinance attempts to address, by regulation of adult businesses, the specific danger
from the sexually transmitted disease AIDS, which is currently irreversible and fatal. The
County of Ventura, Health Care Agency, Public Health Department's HIV /AIDS Report
2003 — 2004 addresses the impact of AIDS to the community. The report indicates that
from 1983 — 2003 there were 868 Adult AIDS cases; 516 Adult Deaths; 3 Pediatric Cases;
2 Pediatric Deaths reported in Ventura County. In the neighboring County of Los Angeles
their "HIV Prevention Plan 2004 - 2008," County of Los Angeles Department of Health
Services ( "County HIV Prevention Plan "). The County HIV Prevention Plan states that as of
July 2004 there was a total of 48,510 persons living with AIDS and that the total number of
such persons has increased since 1995. According the County HIV Prevention Plan, over
1,700 persons living with AIDS are in the San Gabriel Valley special planning area. There
have been at least 28,810 AIDS - related deaths reported in Los Angeles County since the
mid- 1980s.
The ordinance also attempts to address, by regulation of adult businesses, preventing the
spread of other sexually transmitted diseases such as Syphilis, Gonorrhea and Chlamydia.
The County of Ventura, Health Care Agency, Public Health Department's "Monthly
Morbidity Report (12/1/2006 through 12/31/2006)" listing a five -year total (2002 — 2006) of
7,765 cases of Chlamydia; 872 cases of Gonorrhea; and 165 cases of Syphilis. In the
neighboring County of Los Angeles, the Department of Health Services "Sexually
Transmitted Disease Morbidity Report (1998 - 2002)," ( "County STD Report "). The Los
Angeles County STD Report indicates that the between 1998 and 2002 the number of
reported cases in Los Angeles County of: (1) Syphilis increased from 1312 to 1644; (2)
Gonorrhea increased from 5986 to 7,800; and (3) Chlamydia increased from 24,166 to
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Honorable Planning Commission
September 25, 2007
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35,688. It should also be noted that numerous studies have shown that sexually
transmitted diseases such as Syphilis, Gonorrhea and Chlamydia facilitate the
transmission of HIV.
ANALYSIS
The proposed ordinance does five things:
• It repeals Ordinance No. 166, the current adult business regulations; and
■ It amends the Use Matrix Table 17.20.060A.1. to allow adult businesses in
the M -1 and M -2 zones with the issuance of a Zoning Clearance when the
location and operation standards of section 17.24.040N and 17.28.050
are met; and
■ It establishes location requirements for adult businesses in the M -1 and
M -2 zones through the addition of Section 17.24.040N; and
■ It provides operational standards for adult businesses in the M -1 and M -2
zones through the addition of Section 17.28.050; and
■ It provides a reference to Chapter 5.18 Adult Business Performance
Permit.
A map of the City showing the properties where adult businesses can be located in
accordance with the location requirements of the newly proposed Section 17.24.040N
has been prepared by staff and will be available at the Planning Commission meeting.
PROCESSING TIME LIMITS
Since this is an action initiated by the City, the processing time limits under the Permit
Streamlining Act (Government Code Title 7, Division 1, Chapter 4.5), the Subdivision Map
Act (Government Code Title 7, Division 2), and the California Environmental Quality Act
Statutes and Guidelines (Public Resources Code Division 13, and California Code of
Regulations, Title 14, Chapter 3) are not applicable.
ENVIRONMENTAL DETERMINATION
In accordance with the City's environmental review procedures adopted by resolution, the
Planning Director determines the level of review necessary for a project to comply with the
California Environmental Quality Act (CEQA). Some projects may be exempt from review
based upon a specific category listed in CEQA. Other projects may be exempt under a
general rule that environmental review is not necessary where it can be determined that
there would be no possibility of significant effect upon the environment. A project which
does not qualify for an exemption requires the preparation of an Initial Study to assess the
level of potential environmental impacts.
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Based upon the results of an Initial Study, the Director may determine that a project will not
have a significant effect upon the environment. In such a case, a Notice of Intent to Adopt
a Negative Declaration or a Mitigated Negative Declaration is prepared. For many projects,
a Negative Declaration or Mitigated Negative Declaration will prove to be sufficient
environmental documentation. If the Director determines that a project has the potential for
significant adverse impacts and adequate mitigation can not be readily identified, an
Environmental Impact Report (EIR) is prepared.
The Planning Director has reviewed this project and found it to qualify for a General Rule
Exemption in accordance with Section 15061 of California Code of Regulations (CEQA
Guidelines). No further environmental documentation is required.
STAFF RECOMMENDATION
Open the public hearing, accept public testimony and close the public hearing.
2. Adopt Resolution No. PC -2007- recommending to the City Council repeal of
Ordinance No. 166 and approval of Zoning Ordinance Amendment 2007 -03.
ATTACHMENTS:
Draft PC Resolution
4 )f.0 z
ORDINANCE NO. 2007
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA 1) REPEALING ORDINANCE NO. 166; 2)
APPROVING ZONING ORDINANCE AMENDMENT NO. 2007 -03 TO
AMEND TITLE 17, ZONING, BY AMENDING CHAPTER 17.20 USES BY
ZONE TABLE 17.20.060A1 AND ADULT BUSINESSES, SECTION
17.24.040 BY ADDING 17.24.040N ADULT BUSINESS MINIMUM
LOCATION REQUIREMENTS, AND CHAPTER 17.28 STANDARDS FOR
SPECIFIC USES BY ADDING SECTION 17.28.050 ADULT BUSINESS
PERMIT; AND 3) AMENDING TITLE 5, BUSINESS TAXES, LICENSES
AND REGULATIONS BY ADDING CHAPTER 5.18 ADULT BUSINESS
PERFORMER PERMIT
WHEREAS, Ordinance No. 166, adopted by the City Council on June 2, 1993 to
establish regulations for adult entertainment facilities /business regulations, does not
conform to the current law as it relates to the regulation of adult businesses; and
WHEREAS, at its meeting of September 25, 2007, the Planning Commission
conducted a duly- noticed public hearing on the repeal of Ordinance No. 166 and the
approval of Zoning Ordinance Amendment No. 2007 -03, to amend Chapter 17.20 Table
17.20.060A1; amend Section 17.24.040 by adding Section 17.24.040N Adult Business
Minimum Location Requirements; and amend Chapter 17.28 by adding Section
17.28.050 Adult Business Permit, received public testimony on the proposed
amendments, and after receiving oral and written public testimony, closed the public
hearing and recommended the repeal of Ordinance No. 166 and the approval of Zoning
Ordinance Amendment No. 2007 -03 to the City Council; and
WHEREAS, at its meeting of October 17, 2007, the City Council conducted a
duly- noticed public hearing on the repeal of Ordinance 166 and the approval of Zoning
Ordinance Amendment No. 2007 -03, to amend Chapter 17.20 Table 17.20.060A1;
amend Section 17.24.040 by adding Section 17.24.040N Adult Business Minimum
Location Requirements; and amend Chapter 17.28 by adding Section 17.28.050 Adult
Business Permit, as well as a public hearing on an amendment to Title 5 Business
Taxes, Licenses and Regulations by adding Chapter 5.18 Adult Business Performer
Permit, received public testimony on the proposed amendments, and after receiving oral
and written public testimony, closed the public hearing and reached a decision; and
WHEREAS, the public health, safety and welfare of the City and its residents
require the enactment of this ordinance and such operating standards for adult
businesses in order to: (1) mitigate and reduce the judicially recognized potential
adverse secondary effects of adult businesses, including but not limited to crime, the
prevention of blight in neighborhoods and the increased 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 adult businesses; and (3) protect the peace,
CC ATTACHMENT 2 11 t10� .
Ordinance No.
Page 2
welfare and privacy of persons who own, operate and /or patronize adult businesses;
and
WHEREAS, there is substantial evidence that an increase in crime tends to
accompany, concentrate around, and be aggravated by adult businesses, including but
not limited to an increase in the crimes of narcotics distribution and use, prostitution,
pandering, and violence against persons and property. The studies from other cities
establish by convincing evidence that adult businesses that are not regulated as to
operating standards often have a deleterious effect on nearby businesses and residential
areas, causing, among other adverse secondary effects, an increase in crime and a
decrease in property values; and
WHEREAS, based on the foregoing, the City Council finds and determines that
special regulation of adult businesses is necessary to ensure that their adverse
secondary effects will not contribute to an increase in crime rates or to the deterioration of
the areas in which they are located or surrounding areas. While the City Council
acknowledges that as of the date of this ordinance no adult businesses have been
established in the City, the need for such special regulations is nevertheless based upon
the recognition that adult businesses have serious objectionable operational
characteristics, particularly when several of them are concentrated under certain
circumstances or located in direct proximity to sensitive uses such as residences, parks,
schools and churches, thereby having a deleterious effect upon the adjacent areas. One
of the purposes and intents of these special regulations is to prevent the concentration of
adult businesses and thereby prevent such adverse secondary effects; and
WHEREAS, the City Council concurs with the Planning Director's determination that the
proposed ordinance amending Title 5 Business Taxes, Licenses and Regulations by
adding Chapter 5.18, Adult Business Performer Permit; amending Chapter 17.20 Table
17.20.060A1 and amending Section 17.24.040 to add Section 17.24.040N Adult
Business Minimum Location Requirements; and amending Chapter 17.28 by adding
Section 17.28.050 Adult Business Permit and the repeal of Ordinance 166, is needed to
protect the public health, safety, and welfare of the citizens of Moorpark, and that the
proposed ordinance is exempt from the provisions of the California Environmental
Quality Act by the general rule that CEQA only applies to projects that may have a
significant effect on the environment.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
DOES ORDAIN AS FOLLOWS:
SECTION 1. GENERAL PLAN AND SPECIFIC PLAN CONSISTENCY: The
City Council finds the proposed amendments under Zoning Ordinance Amendment No.
2007 -03 to amend Chapter 17.20 Table 17.20.060A1, to amend Section 17.24.040 by
adding Section 17.24.040N Adult Business Minimum Location Requirements and to
amend Chapter 17.28 by adding Section 17.28.050 Adult Business Permit are
consistent with the City of Moorpark General Plan and all adopted Specific Plans.
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SECTION 2. FINDINGS. The City Council of the City of Moorpark hereby
finds and declares that:
(a) It is necessary and appropriate to amend Title 5 Business Taxes, Licenses
and Regulations, adding Chapter 5.18, Adult Business Performer Permit; and to amend
Chapter 17.20 Table 17.20.060A1 and to amend Section 17.24.040 to add Section
17.24.040N Adult Business Minimum Location Requirements and amend Chapter 17.28
by adding Section 17.28.050 Adult Business Permit in order to refine and update the
appropriate zoning districts and locations for potential adult businesses and enhance
the permitting and operational standards for adult businesses, and establish a permiting
process for adult business performers. The public health, safety and welfare of the City
and its residents require the enactment of this ordinance and such operating standards
for adult businesses in order to: (1) mitigate and reduce the judicially recognized
potential adverse secondary effects of adult businesses, including but not limited to
crime, the prevention of blight in neighborhoods and the increased 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 adult businesses; and (3) protect the
peace, welfare and privacy of persons who own, operate and /or patronize adult
businesses.
(b) The City Council, in adopting this ordinance, takes legislative notice
pursuant to California Government Code Section 65850.4 of the existence and content of
the following studies concerning the adverse secondary side effects of adult businesses
in other cities: Alhambra, California (2007); Industry, California (2004); Dallas, Texas
(1997); Houston, Texas, (1997); Newport News, Virginia (1996); New York City, New
York (1994); Times Square, New York (1994); Oklahoma City, Oklahoma (1992); Garden
Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); St. Paul,
Minnesota (1988); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis,
Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis,
Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas
(1977); Cleveland, Ohio (1977); and Los Angeles, California (1977). The City Council
finds that these studies are relevant to the problems addressed by the City in enacting
this ordinance to regulate the adverse secondary side effects of adult businesses, and
more specifically finds that these studies provide convincing evidence that:
1. There is substantial evidence that an increase in crime tends to
accompany, concentrate around, and be aggravated by adult businesses, including but
not limited to an increase in the crimes of narcotics distribution and use, prostitution,
pandering, and violence against persons and property. The studies from other cities
establish by convincing evidence that adult businesses that are not regulated as to
operating standards often have a deleterious effect on nearby businesses and residential
areas, causing, among other adverse secondary effects, an increase in crime and a
decrease in property values.
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2. Regulations for adult businesses should be developed to prevent
deterioration or degradation of the vitality of the community before the problem exists,
rather than waiting for problems to be created.
(c) Based on the foregoing, the City Council finds and determines that special
regulation of adult businesses is necessary to ensure that their adverse secondary effects
will not contribute to an increase in crime rates or to the deterioration of the areas in
which they are located or surrounding areas. While the City Council acknowledges that
as of the date of this ordinance no adult businesses have been established in the City, the
need for such special regulations is nevertheless based upon the recognition that adult
businesses have serious objectionable operational characteristics, particularly when
several of them are concentrated under certain circumstances or located in direct
proximity to sensitive uses such as residences, parks, schools and churches, thereby
having a deleterious effect upon the adjacent areas. One of the purposes and intents of
these special regulations is to prevent the concentration of adult businesses and thereby
prevent such adverse secondary effects.
(d) In developing this ordinance, the City Council is mindful of legal principles
relating to regulation of adult 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 adult
businesses. The City Council has considered decisions of the United States Supreme
Court regarding local regulation of adult businesses, including but not limited to: City of
Los Angeles v. Alameda Books, 535 U.S. 425, 122 S. Ct. 1728 (2002); City of Erie v.
Pap's A.M. ( "Kandyland'), 529 U.S. 277, 120 S.Ct. 1382 (2000); Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456 (1991); FW /PBS, Inc. v. City of Dallas, 493
U.S. 215, 110 S.Ct. 596 (1990); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,
106 S.Ct. 925 (1986); and Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct.
2440 (1976); decisions of the United Stated Court of Appeals for the Ninth Circuit,
including but not limited to: Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005);
Dream Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004); Diamond v. City of
Taft, 215 F.3d 1052 (9th Cir. 2000), cent. denied 531 U.S. 1072 (2001); Isbell v. City of
San Diego, 258 F.3d 1108 (9th Cir. 2001); Young v. City of Simi Valley, 216 F.3d 807
(9th Cir. 2000), cert. denied 531 U.S. 1104 (2001); Lim v. City of Long Beach, 217 F.3d
1050 (9th Cir. 2000), cert. denied 121 S.Ct. 1189 (2001); Alameda Books v. City of Los
Angeles, 222 F.3d 719 (9th Cir. 2000), cert. granted 121 S.Ct. 1223 (2001); Baby Tam
& Co., Inc. v. City of Las Vegas ( "Baby Tam 1 "), 154 F.3d 1097 (9th Cir. 1998); Baby
Tam & Co., Inc. v. City of Las Vegas ( "Baby Tam II'), 199 F.3d 1111 (9th Cir. 2000);
Baby Tam & Co., Inc. v. City of Las Vegas ( "Baby Tam lll'), 247 F.3d 1003 (9th Cir.
2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999);
Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053
(2000); 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 BSA, Inc. v. King County, 804 F.2d 1104 (9th Cir. 1986); several California cases,
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including but not limited to: Krontz v. City of San Diego, 136 Cal.App.4th 1126 (2006);
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board
of California ( "Vicary'), 99 Cal.App.4th 880 (2002); Tily B., Inc. v. City of Newport
Beach, 69 Cal.App.4th 1 (1998); City of National City v. Wiener, 3 Cal.4th 832 (1993),
cert. denied 510 U.S. 824; People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); and
City of Vallejo v. Adult Books, 167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064
(1986); and other federal cases, including but not limited to: Hang On, Inc. v. City of
Arlington, 65 F.3d 1248 (5th Cir. 1995); Mitchell v. Commission on Adult Entertainment,
10 F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jackson, 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); and Star
Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986).
(e) The location requirements established by this ordinance do not
unreasonably restrict the establishment or operation of constitutionally protected adult
businesses in the City, and a sufficient reasonable number of appropriate locations for
adult businesses are provided by this ordinance.
(f) The City Council also finds that location criteria alone do not adequately
protect the health, safety, and general welfare of the citizens of the City, and thus
certain requirements with respect to the ownership, operation and licensing of adult
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 also takes
legislative notice of 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.
(g) The City Council finds the following, in part based upon its understanding of
the documents and judicial decisions in the public record:
1. Evidence indicates that some dancers, models, performers, and
other persons who publicly perform specified sexual activities or publicly display
specified anatomical areas in adult businesses (collectively referred to as "performers ")
have been found to engage in sexual activities with patrons of adult businesses on the
site of the adult business.
2. Evidence has demonstrated that performers employed by adult
businesses have been found to offer and provide private shows to patrons who, for a
price, are permitted to observe and participate with the performers in live sex shows.
3. Evidence indicates that performers at adult businesses have been
found to engage in acts of prostitution with patrons of the establishment.
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4. Evidence indicates that fully enclosed booths, individual viewing
areas, and other small rooms whose interiors cannot be seen from public areas of the
establishment regularly have been found to be used as locations for engaging in
unlawful sexual activity.
5. As a result of the above, and the increase in incidents of HIV, AIDS,
and hepatitis B, which are sexually transmitted or blood borne diseases, the City has a
substantial interest in adopting regulations that will reduce the possibility for the
occurrence of prostitution and unlawful sex acts at adult businesses in order to protect
the health, safety, and well -being of its citizens. The City finds this is relevant to the
experience of Moorpark and the need to regulate the secondary effects of adult
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.
(h) 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 Ventura County Public Health Department's "HIV /AIDS
Surveillance Final Report January 2006 - December 2006." The report indicates that as
of 2006 there were at least 1,024 people living with AIDS in Ventura County and that
there have been at least 575 AIDS - related deaths reported in Ventura County.. since
1987. In the neighboring County of Los Angeles, the "HIV Prevention Plan 2004 -
2008," prepared by the Department of Health Services found that as of July 2004 there
were 48,510 persons living with AIDS and that the total number of such persons had
increased since 1995. Moreover, there have been at least 28,810 AIDS - related deaths
reported in Los Angeles County since the mid- 1980s.
(i) The City is also concerned with preventing the spread of other sexually
transmitted diseases such as Syphilis, Gonorrhea and Chlamydia. The City Council
takes legislative notice of the County of Ventura, Health Care Agency, Public Health
Department's "Monthly Morbidity Report (12/1/2006 through 12/31/2006) listing a five -
year total (2002 -2006) of 7,765 cases of Chlamydia; 872 cases of Gonorrhea; and 165
cases of Syphilis. In the neighboring County of Los Angeles the Department of Health
Services "Sexually Transmitted Disease Morbidity Report (1998 -2002) indicates that the
between 1998 and 2002 the number of reported cases in Los Angeles County of: (1)
Syphilis increased from 1312 to 1644; (2) Gonorrhea increased from 5986 to 7,800; and
(3) Chlamydia increased from 24,166 to 35,688. It should also be noted that numerous
studies have shown that sexually transmitted diseases such as Syphilis, Gonorrhea and
Chlamydia facilitate the transmission of HIV.
0) In recognition of these negative secondary effects generated by live adult
entertainment, a number of courts have upheld distance limitations between performers
and patrons, prohibitions against physical contact between performers and patrons, and
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precluded direct exchange of monies between performers and patrons at adult
businesses that provide live entertainment, including, but not limited to: Gammoh v. City
of La Habra, 395 F.3d 1114 (91h Cir. 2005); Tily B. v. City of Newport Beach (1999) 69
Cal.App.4th 1; Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); BSA, Inc. v.
King County, 804 F.2d 1104, 1110 -11 (9th Cir. 1986); Kev, Inc. v. Kitsap County, 793
F.2d 1053 (9th Cir. 1986); DLS, Inc. v. City of Chattanooga, 894 F. Supp. 1140 (E.D.
Tenn. 1995); Parker v. Whifeld County, 463 S.E.2d 116 (Ga. 1995); and Hang On, Inc.
v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995).
(k) The City Council believes that prohibiting physical contact between
performers and patrons at adult businesses prohibiting booths and concealed viewing
areas, requiring separate entrances for performers from those used for patrons,
requiring separate restrooms for opposite sexes, prohibiting performers from soliciting
payment from patrons, and prohibiting the direct payment to performers by patrons are
a reasonable and effective means of addressing the legitimate governmental interests
of preventing prostitution, the spread of sexually transmitted diseases, and drug
transactions. The case law and studies establish this link.
(1) In considering appropriate operational regulations for adult businesses,
the City Council finds that:
1. Preventing the exchange of money between performers and
patrons also reduces the likelihood of drug and sex transactions occurring in adult
businesses.
2. Requiring separations between performers and patrons precludes
them from being within earshot to communicate and thereby reduces the likelihood that
such persons will negotiate narcotics sales or transact sexual favors within the adult
business.
3. Enclosed or concealed booths and dimly lit areas within adult
businesses greatly increase the potential for misuse of the premises, including unlawful
conduct of a type which facilitates transmission of disease. Prohibiting such enclosed
or concealed spaces and requiring adequate lighting to be provided reduces the
opportunity for, and therefore the incidence of illegal conduct within adult businesses,
and further facilitates the inspection of the interior of the premises thereof by law
enforcement personnel.
i. 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.
ii. With respect to booths, these findings include the following:
The inside walls of the booth are typically covered with graffiti and messages, usually of
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a sexual nature and consisting of telephone numbers, names, requests and offers for
sex acts, anatomical descriptions, and sketches. Some booths also contain a chart
used as an appointment schedule that is utilized to schedule appointments for sex acts
that take place in that particular booth. In some instances, this arrangement has been
used for the solicitation of prostitutes. Many of these booths are equipped with a hole in
the side wall between the booths to allow patrons to engage in anonymous sex
including both oral and anal sex acts. Inside the booths, the floors and walls are often
wet and sticky with liquid or viscous substances, including semen, urine, feces, used
prophylactics, gels, saliva, or alcoholic beverages. The City Council concludes, based
in part on the description of the illicit sexual activity as noted within the Attorney
General's Report, that the presence of enclosed booths and viewing areas is likely to
lead to the above described secondary effects.
iii. 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 findings that holes were present in the
walls of adjoining booths within adult entertainment establishments, and that these
holes were used by male patrons to facilitate sex acts with the occupant of the
neighboring booth. The City Council reasonably believes that the Tucson experience,
along with the Attorney General's Report, is relevant to the problems potentially
associated with adult businesses in Moorpark.
iv. The City Council finds that prohibiting adult booths and
individual viewing areas is necessary to eliminate the masturbation and sexual activity
that are known to occur in such closed booths and areas and which present significant
health and safety concerns with respect to communicable diseases, including AIDS.
The City Council takes further note of the Ninth Circuit's decision in El/west Stereo
Theatres, Inc. v. Weiner, 681 F.2d 1243 (9th Cir. 1982) and its finding that there is no
constitutional right to unobserved masturbation in a public place.
(m) The City Council also finds the establishment of an adult business
regulatory licensing process, operational standards for adult businesses and performer
licensing provisions are legitimate and reasonable means of ensuring that:
1. Operators of and performers at adult businesses comply with the
City's regulations;
2. The recognized adverse secondary impacts of a proposed adult
business are mitigated;
3. Adult business operators have specific guidelines with respect to
the manner in which they can operate an adult business;
4. The applications for adult business regulatory permits and
performer permits are handled fairly and expeditiously; and
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5. The correct identification of performers working in adult businesses
occurs so that the City is able to effectively deploy resources and detect and discourage
prostitution and criminal activity from occurring in and around adult businesses.
(n) The City Council finds that law enforcement agencies maintain separate
databases for drug - related convictions, prostitution convictions and sex crime offender
registration, and that knowledge of an applicant's true identity is necessary to conduct
background checks in such databases. Moorpark's Police Department has determined,
based upon the experience of its police officers and its past experiences, along with
other law enforcement agencies, that fingerprinting is the only reliable method for
determining a person's true identity for the purposes of background checks.
(o) The City Council recognizes the possible harmful effects on children and
minors exposed to the effects of adult 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 Cal.AppAth 1075 (1995).
(p) While the City Council desires to protect the rights conferred by the United
States Constitution to adult 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 and judicial record have shown to be associated with the
operation of adult businesses.
(q) Operating standards are a legitimate and reasonable means of ensuring
that adult businesses are conducted in a manner so as to minimize their adverse
secondary effects and to help assure that such operators and businesses 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
City residents, protect citizens from increased crime, preserve the quality of life,
preserve property values and the character of surrounding neighborhoods and
businesses, and deter the spread of urban blight. The operational requirements
contained in this ordinance do not unreasonably restrict the establishment or operation
of constitutionally protected adult businesses in the City.
(r) The City Council, in adopting operational standards, recognizes that these
standards do not preclude reasonable alternative avenues of communication. For
example, the closing hours requirement means that adult businesses are free to operate
7 days a week for 17 hours per day. The City Council takes note of the proliferation of
adult material on the Internet, satellite television, direct television, CDs, DVDs, and that
these various media provide alternative avenues of communication. The City Council
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also considers and relies on published decisions examining the proliferation of
communications on the Internet. (Reno v. American Civil Liberties Union, 521 U.S. 844
(1997) [the principle channel through which many Americans now transmit and receive
sexually explicit communication is the Internet]; Anheuser -Busch v. Schmoke, 101 F.3d
325 (4th Cir. 1996), cert. denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a
First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements
on billboards acknowledging that the Internet is one available channel of
communication]; U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); see also U.S. v.
Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 519 U.S. 820 [recognizing the
Internet as a medium for transmission of sexually explicit material in the context of
obscenity prosecutions] DiMa Corporation v. Town of Hallie, 60 F.Supp.2d 918 (W.D.
Wisconsin 1998) [adult bookstore able to operate after regulated hours using the
Internet].)) The emergence of 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. An adult business no longer has to be "actually"
physically located in a city to be available in the community.
(s) The City Council has also determined that a closing hours requirement
promotes the reduction of deleterious secondary effects from adult facilities and
reasonably relies on prior court decisions on the need for closing hours including Dream
Palace v. County of Maricopa, 384 F.3d 990 (9t" Cir. 2004); Mitchell v. Comm. on Adult
Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lady J. Lingerie, Inc. v. City of Jacksonville,
973 F.Supp. 1428 (M.D. Fla. 1997); Lady J. Lingerie, Inc. v. City of Jacksonville, .176
F.3d 1358 (11th Cir. 1999); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272
(1995).
(t) The City Council does not intend to regulate in any area preempted by
California law, including but not limited to, regulation of obscene speech, nor is it the
intent of the City Council to preempt regulations of the State Alcoholic Beverage Control
( "ABC ").
(u) The City Council finds that the occurrence of nudity in alcoholic beverage
establishments located in close proximity to residential areas, religious institutions,
schools, and parks has a detrimental effect on such uses, and that the location of such
establishments in close proximity to each other has a detrimental effect on the entire
neighborhood. Therefore, the City Council finds that in order to preserve public peace
and good order, the integrity of residential neighborhoods, and other sensitive land
uses, it is necessary and advisable to regulate alcoholic beverage facilities permitting
nudity.
(v) It is not the intent of the City Council in enacting this ordinance, or any
provision thereof, to condone or legitimize the distribution of obscene material, and the
City recognizes that state law prohibits the distribution of the obscene materials and
expects and encourages law enforcement officials to enforce state obscenity statutes
against such illegal activities in the City.
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(w) 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 City ordinance 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.
SECTION 3. Ordinance No. 166 is hereby repealed in its entirety.
SECTION 4. Chapter 17.20 Table 17.20.060A1, Section 17.24.040N Adult
Business Minimum Location Requirements, Section 17.28.050 Adult Business Permit,
and Chapter 5.18 Adult Business Performer Permit, are hereby amended and
established as shown in Exhibits A, B, C, and D, attached.
SECTION 5. If any section, subsection, sentence, clause, phrase, part or
portion of this Ordinance is for any reason held to be invalid or unconstitutional by any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council declares that it would have
adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or
portion thereof, irrespective of the fact that any one or more section, subsections,
sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional.
SECTION 6. This Ordinance shall become effective thirty (30) days after its
passage and adoption.
SECTION 7. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said City; shall
make a minute of the passage and adoption thereof in the records of the proceedings of
the City Council at which the same is passed and adopted; and shall, within fifteen (15)
days after the passage and adoption thereof, cause the same to be published once in
the Moorpark Star a newspaper of general circulation, as defined in Section 6008 of the
Government Code, for the City of Moorpark, and which is hereby designated for that
purpose.
PASSED AND ADOPTED this day of , 2007.
Patrick Hunter, Mayor
Deborah S. Traffenstedt, City Clerk
Attachments:
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Exhibit A, Table 17.20.060A1
Exhibit B, Section 17.24.040N
Exhibit C, Section 17.28.050
Exhibit D, Chapter 5.18
SaCommunity DevelopmentlDEV PMTSIZ 0 A12007103 Adult BusinesslReso and Ordlord.doc 00 i ;.� i?
EXHIBIT A
AMENDMENT OF THE MUNICIPAL CODE TITLE 17 ZONING.
Title 17, Chapter 17.20 Uses by Zone, Section 17.20.060, Table 17.20.060 Permitted
Uses in the Commercial and Industrial Zone, Section A.1. of the Moorpark Municipal
Code is amended as shown below:
Table 17.20.060
PERMITTED USES IN COMMERCIAL AND INDUSTRIAL ZONES
[Blank] = Not permitted
AP = Administrative Permit
CUP = Conditional Use Permit
NZC = No Zoning Clearance required
TUP = Temporary Use Permit
ZC = Permitted by Zoning Clearance
Zones
C -O
C -1
CPD
C-
M -1
I M -2
I
C -2
OT
A. Retail and Service Uses
1. Adult businesses when in compliance with
ZC
ZC
sections 17.24.040N, section 17.28.050 and Chapter
5.18
The remainder of Table 17.20.060 remains unchanged.
EXHIBIT B
SECTION 17.24.040
N. Adult business minimum location requirements. In addition to meeting all requirements
of section 17.28.050 and all requirements of chapter 5.18 of the Moorpark Municipal
Code, an adult business may not be located:
1. Within 500 feet of any property zoned R -1, R -2, RPD, or any lot where there is
an actual residential use, whether inside or outside the city limits; and
2. Within 500 feet of any church, synagogue, mosque or other publicly
recognized place of worship, whether inside or outside of the city limits; and
3. Within 500 feet of any public or private school or child care establishment,
whether inside or outside the city limits; and
4. Within 500 feet of any public park or playground, or any city facility including
but not limited to city hall, the city library, and any police or fire station; and
5. Within 500 feet of any property operating a business with a Type 40, 42, 48 or
61 on -site alcoholic beverage license; and
6. Within 1000 feet of any other adult business whether inside or outside the city
limits.
The distances specified in this subsection will be measured in a straight line, without
regard to intervening structures, from the nearest point of the premises in which the
proposed adult business is to be established to the nearest property line of a use or
zoning classification listed above.
0004
EXHIBIT C
SECTION 17.28.050
ADULT BUSINESS PERMIT
A. Intent. The intent of this chapter is to regulate adult businesses which, unless closely
regulated, may have serious secondary effects on the community. These secondary
effects include, but are not limited to: depreciation of property values, increases in
vacancy rates in residential and commercial areas, increases in incidences of criminal
activity and police service calls, increases in noise, litter and vandalism and the
interference with property owners' enjoyment of their property in the vicinity of such
businesses.
It is neither the intent nor effect of this section to impose limitations or restrictions on the
content of any communicative material. Similarly, it is neither the intent nor effect of this
section to restrict or deny access by adults to sexually oriented materials, or to deny
access by the distributors or exhibitors of sexually oriented entertainment to their
intended market.
Nothing in this section is intended to authorize, legalize or permit the establishment,
operation or maintenance of any business, building or use which violates any city
ordinance or any law of the State of California regarding public nuisances, unlawful
exposure, sexual conduct, lewdness or obscene or harmful matter or the exhibition or
public display thereof.
B. Definitions. As used in this section:
"Adult arcade" means any business establishment or concern containing coin or slug
operated or manually or electronically controlled still, motion picture or video machines,
projectors, or other image producing devices that are maintained to display images to
an individual when those images are distinguished or characterized by an emphasis on
matter depicting, describing or relating to specified sexual activities or specified
anatomical areas. Such devices are referred to as "adult arcade devices."
"Adult bookstore" means any establishment, which as a regular and substantial course
of conduct, displays or distributes sexually oriented merchandise, books, periodicals,
magazines, photographs, drawings, sculptures, motion pictures, videos, slides, films, or
other written, oral or visual representations which are distinguished or characterized by
an emphasis on a matter depicting, describing or relating to specified sexual activities or
specified anatomical areas.
"Adult booth /individual viewing area" means a partitioned or partially enclosed portion
of an adult business used for any of the following purposes:
1. Where a live or taped performance is presented or viewed, where the
performances or images displayed or presented are distinguished or characterized by
their emphasis on matter depicting, describing, or relating to specified sexual activities
or specified anatomical areas;
2. Where adult arcade devices are located.
"Adult business" means any business establishment or concern which as a regular and
substantial course of conduct performs or operates as an adult arcade, adult bookstore,
adult cabaret, adult model studio, adult motel oF hotel, or adult theater. It also means
any business establishment or concern which as a regular and substantial course of
conduct sells or distributes sexually oriented merchandise or sexually oriented material;
or any other business establishment or concern which as a regular and substantial
course of conduct offers to its patrons products, merchandise, services or entertainment
characterized by an emphasis on matters depicting, describing or relating to specified
sexual activities or specified anatomical areas. "Adult business" does not include those
uses or activities, the regulation of which is preempted by state law.
"Adult cabaret" means a business establishment (whether or not serving alcoholic
beverages) that features adult live entertainment.
"Adult live entertainment" means 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 or bottomless dancers, go-
go dancers, exotic dancers, strippers, or similar performers) exposes to public view,
without opaque covering, specified anatomical areas; 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.
"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 any live art class or any studio or
classroom which is operated by any public agency, or any private educational institution
that is maintained pursuant to standards set by the Board of Education of the State of
California.
"Adult store" means any establishment, which as a regular and substantial course of
conduct, displays or distributes sexually oriented merchandise or sexually oriented
material.
"Adult theater" means a business establishment or concern which, as a regular and
substantial course of conduct, presents live entertainment, motion pictures, videos,
digital video disks, slide photographs, or other pictures or electronically generated visual
reproductions which is distinguished or characterized by the emphasis on matter
depicting, describing or relating to specified sexual activities or specified anatomical
areas.
"Code compliance officer" means an officer or employee authorized by the governing
body to enforce certain provisions of this section.
"Director" means the community development director or the manager of the community
development department of the city of Moorpark or the director's designee.
"Establishment of an adult business" means any of the following:
1. The opening or commencement of any adult business as a new business;
2. The conversion of an existing business, whether or not an adult business, to any
adult business;
3. The addition of any of the adult businesses defined herein to any other existing
adult business; or
4. The relocation of any such adult business.
_Lap dance" includes chair dancing, couch dancing, straddle dancing, table dancing,
and means an employee or independent contractor of an adult business intentionally
touching any patron while engaged in adult live entertainment.
"On -site manager' means any person designated by the owner as responsible for the
day -to -day on -site operation of the adult business.
"Operate an adult business" means the supervising, managing, inspecting, directing,
organizing, controlling or in any way being responsible for or in charge of the premises
of an adult business or the conduct or activities occurring on such premises.
"Operator" means a person who supervises, manages, inspects, directs, organizes,
controls or in any other way is responsible for or in charge of the premises of an adult
business or the conduct or activities occurring on such premises.
"Owner" means all persons having a direct or indirect investment in an adult business;
provided, however, where such investment is held by a corporation, for the purposes of
this section, each officer and director of a corporation and each stockholder holding
more than five percent (5 %) of the stock of such corporation is deemed to be an owner.
"Performer" means a person who is an employee or independent contractor 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 an adult business.
"Person" means any individual, firm, association, partnership, limited liability company,
corporation or other form of legal entity.
"Permittee" means any of the following:
1. The sole proprietor of an adult business;
2. Any general partner of a partnership that owns and operates an adult
business;
3. The owner of a controlling interest in a corporation or limited liability company
that owns and operates an adult business; or
4. The person designated by the officers of a corporation or the members of an
limited liability company to be the permit holder for an adult business owned and
operated by the entity.
"Police chief' means the chief of the city of Moorpark police department or the police
chief's designee.
"Sexually oriented material" means any element of sexually oriented merchandise, or
any book, periodical, magazine, photograph, drawing, sculpture, motion picture film,
video, or other written, oral or visual representation which, for purposes of sexual
arousal, provides depictions which are characterized by an emphasis on matter
depicting, describing or relating to specific sexual activities or specified anatomical
areas.
"Sexually oriented merchandise" means sexually oriented implements and
paraphernalia including but not limited to: dildos, auto sucks, sexually oriented vibrators,
edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices,
simulated and battery operated vaginas, and similar sexually oriented devices which are
designed or marketed primarily for the stimulation of human genital organs or sado-
masochistic activity or which are characterized by an emphasis on matter depicting,
describing or relating to specific sexual activities or specified anatomical areas.
"Specified anatomical areas" means:
1. Less than completely and opaquely covered human genitals; pubic region;
buttocks, or female breast below a point immediately above the top of the areola; or
2. Human male genitals in a discernibly turgid state, even if completely and
opaquely covered.
"Specified sexual activities" means-
1 . Fondling or touching of nude human genitals, pubic region, buttocks or
female breast;
2. Human sex acts, actual or simulated, including intercourse, oral copulation
or sodomy;
3. Acts of human masturbation, sexual stimulation or arousal;, actual or
simulated;
4. Human genitals in a state of sexual stimulation or arousal;
5. Use of human or animal ejaculation}
6. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain,
or bondage, or restraints; or
7. Excretory functions as part of, or in connection with, any of the activities listed
in (1) to (7) of this definition.
C. Permit required. It is unlawful for any person to establish or operate any adult
business within the city without first obtaining, and continuing to maintain in full force
and effect, an adult business permit and a business registration from the city. The adult
business permit will be subject to the development and operational standards of this
section, section 17.24.040N and the regulations of the zoning district in which the
business is located.
D. Application submittals.
1. Application. Any person desiring to obtain an adult business permit must submit an
application to the community development department on form(s) provided by the city.
The application must contain, at a minimum, the following information regarding the
owners and the following items:
a. Name and address of all owners of the proposed adult business, collectively
referred to hereafter as the "applicant."
b. The previous residential addresses of all individual owners, if any, for a period
of 5 years immediately prior to the date of filing the application and the dates of
residence at each address.
c. Written proof that all individual owners are at least 18 years of age.
d. A five (5) year history of the applicant from the date of the application, as to
the operation of any adult business or similar business or occupation. A statement as to
whether or not such applicant, in operating an adult business under a permit or license,
has had such permit or license revoked or suspended and the reasons therefore.
e. All criminal convictions or offenses described in Section 17.28.050F2k of the
applicant; and whether the applicant is required to register under the provisions of
Section 290 of California Penal Code or Section 11590 of the California Health and
Safety Code.
f. Written authorization giving the city, its agents and employees authorization to
seek information and conduct an investigation into the truth of the statements set forth
in the application and the qualifications of the applicant for the permit.
g. The height, weight, and color of eyes and hair of all applicants.
h. Fingerprints and two (2) prints of a recent passport-size photograph of all
applicants.
i. Business, occupation or employment history of the applicants for the five (5)
years immediately preceding the date of the application.
j. A nonrefundable deposit or fee as set forth by city council resolution.
k. A narrative description of the proposed business explaining how such business
complies or will comply with the applicable development and operational standards
specified in this section and section 17.24.040N.
I. A site plan showing the building or unit proposed for the adult business, the
distance required by section 17.24.040N of the surrounding area and a fully
dimensioned interior floor plan showing how the business complies or will comply with
the applicable development and operational standards specified in this section. The site
plan and interior floor plan need not be professionally prepared, but must be drawn to a
designated engineering or architectural scale to an accuracy of plus or minus 6 inches.
m. A photometric plan, in accordance with chapter 17.30, Lighting Regulations of
the City of Moorpark Municipal Code for all outdoor areas including parking areas.
n. If the applicant is a partnership, limited liability company or corporation,
documentary proof that such entity was duly formed, and is authorized to do business
and is in good standing in the state of California.
o. The fictitious name, if any, of the adult business, together with documentary
proof of registration of the fictitious name.
p. If the applicant does not own the lot or parcel on which the adult business will
operate, the property owner or lessor of the premises, as applicable, must consent to
the filing of the application by signing and dating the application. If the property owner
or lessor is more than one natural person, one such person must sign the application. If
the property owner or lessor is a legal entity, a general partner, officer, director, member
or other authorized person thereof must sign the application.
q. A statement in writing and dated by the applicant certifying under penalty of
perjury that the information contained in the application is true and correct. If the
applicant is one or more natural persons, one such person must sign the application
under penalty of perjury. If the applicant is a partnership, limited liability company or
corporation, a general partner, officer, director or member of the entity must sign the
application under penalty of perjury.
r. Such other information as the director may reasonably deem necessary.
2. Determination of completeness. The director will determine whether the application
contains all the information and items required by the provisions of this section. If it is
determined that the application is not complete, the applicant will be notified in writing
within five (5) business days of the date of receipt of the application that the application
is not complete and the reasons therefor, including any additional information necessary
to render the application complete. The applicant will have thirty (30) business days to
submit additional information to render the application complete. If within the thirty (30)
business day period the applicant has not submitted the requested information the
(a
application will be void. Within five (5) business days following the receipt of an
amended application or supplemental information, the director will again determine
whether the application is complete in accordance with the procedures set forth in this
subsection. Evaluation and notification will occur as provided above until such time as
the application is found to be complete or the application is withdrawn. The applicant
will be notified within five (5) business days of the date of the application is found to be
complete (hereafter "application date "). All notices required by this section will be
deemed given upon the date any such notice is either deposited in the United States
mail or the date upon which personal service of such notice is provided.
E. Review of application.
1. The director will promptly cause the investigation of the complete application and
within thirty (30) business days of the date of a complete application, either issue the
permit or send by certified mail a written statement to the applicant setting forth the
reasons for denial of the permit. If the director has not issued a decision on the
application within thirty (30) business days of the date of a complete application, the
application will be deemed approved, subject to an appeal under section 17.28.050M.
2. The director may deny the permit for any of the following reasons:
a. An applicant has made one or more material misstatements in the application;
b. The adult business, if permitted, will not comply with all applicable laws,
including, but not limited to, the zoning, building, health, housing and fire codes of the
city;
c. An applicant has pled guilty, nolo contendere or been convicted within five (5)
years of the application date of an offense specified in section 17.28.050F2j;
d. An applicant or any operator has had a permit or license for an adult business
denied, revoked or suspended for cause by any city, county or state within three (3)
years of the application date;
e. An applicant is under 18 years of age;
f. The applicant failed to pay the filing fee required by this section.
If the permit is denied, the director must state in writing the reasons for the denial and in
the notice to the applicant must reference the applicant's right to an appeal under
Section 17.28.050M.
3. The decision of the director to issue or deny a permit will be final unless an appeal is
timely filed under Section 17.28.050M.
F. Development and operational standards.
1. Development standards.
a. Zoning compliance. The building in which an adult business is located must
comply with all applicable setbacks and parking requirements of the applicable zoning
district.
b. Exterior lighting. All exterior areas, including parking lots regardless of the
number of required parking spaces, of the adult business must be in compliance with
chapter 17.30, Lighting Regulations of the Moorpark Municipal Code. Inoperable or
broken lights must be replaced within 24- hours.
c. Sound. The premises within which the adult business is located must provide
sufficient sound - absorbing insulation so that noise generated inside such premises will
not be audible anywhere on any adjacent property or public right -of -way or within any
UUO ��U A
other building or other separate unit within the same building and shall be in compliance
with chapter 17.53. Noise of the Moorpark Municipal Code.
d. No minors. The building entrance to an adult business must be clearly and
legibly posted with a notice indicating that persons under 18 years of age are precluded
from entering the premises. Such notice must be constructed and posted to the
satisfaction of the director and in compliance with chapter 17.40 Sign Regulations of the
Moorpark Municipal Code. Persons under the age of 18 years may not be permitted
within the premises at any time.
e. Open indoor areas. All indoor areas within which patrons are permitted,
except restrooms, must be open to view at all times. Adult booths and individual
viewing areas are prohibited.
f. Restrooms. Separate restroom facilities must be provided for male patrons and
employees, and female patrons and employees. Male patrons and employees are
prohibited from using any restroom for females, and female patrons and employees are
prohibited from using any restroom for males, except to carry out duties of repair,
maintenance and cleaning of the restroom facilities. The restrooms must be free from
any sexually oriented material. Restrooms may not contain television monitors or other
motion picture or video projection, recording or reproduction equipment. This subsection
does not apply to an adult business which deals exclusively with the sale or rental of
sexually oriented material which is not used or viewed on the premises, such as an adult
bookstore or adult video store, and which does not provide restroom facilities to its
patrons or the general public.
g. Residential conversions prohibited. Residential structures may not be converted
for use as an adult business.
h. Portable structures prohibited. Adult business may not be located in any
temporary or portable structure.
2. Operational standards.
a. Hours. Adult business may not operate or be open for business between the
hours of 2:00 a.m. and 9:00 a.m., eXGept fbF an adult hotel aF motel.
b. Employment of minors prohibited. An owner or operator of any adult business
may not employ or permit to be employed any person who is not at least 18 years of
age.
c. Presence of minors on premises prohibited. An owner or operator of an adult
business may not allow or permit any person under the age of 18 years to enter, be in
or remain in any such business. Operators must determine the age of persons who
enter the premises by checking the driver's license or other authorized identification of
such person.
d. Screening of interior of premises and display of sexually oriented materials. No
adult business may be operated in any manner that permits the observation of any
material or activities depicting, describing or relating to specified sexual activities or
specified anatomical areas from any public way or from any location outside the building
or area of such establishment. This provision applies to any display, decoration, sign,
show window or other opening. No exterior door or window on the premises may be
propped or kept open at any time while the business is open, and any exterior windows
must be covered with opaque covering at all times or otherwise screened to prevent a
view of the interior in a manner approved by the director.
0004041,
e. Alcoholic beverages prohibited. Alcoholic beverages may not be served,
consumed or sold on the premises of an adult business.
f. Interior lighting. All areas of the adult business must be illuminated at a
minimum of the following foot - candles, minimally maintained and evenly distributed at
ground level:
Area
Foot - Candles
Stores and other retail establishments
20
Theaters and cabarets
5 (except during performances, at which
times lighting must be at least 1.25 foot
candles.
Arcades
10
AAetel -- - - - -els
Modeling studios
20
g. On -site manager -- security measures.
1. On -site manager. All adult businesses must have a responsible person who is
over the age of 18 and is on the premises to act as manager at all times during which
the business is open. Performers may not serve as a manager. The name of any
individual designated as the on -site manager must be provided to the director in order to
receive all complaints and be given the responsibility and duty by the owner or operator
to address and immediately resolve all violations of law taking place on the premises.
2. Adult businesses must employ state licensed uniformed security guards in order
to maintain the public peace and safety, based upon the following standards:
i. Adult businesses featuring adult live entertainment and performers must
provide at least 1 security guard at all times while the business is open. If the occupancy
limit of the premises is greater than thirty -five (35) persons, an additional security guard
must be on duty.
ii. Security guards for other adult businesses may be required if it is
determined by the police chief that their presence is necessary in order to prevent any of
the conduct listed in this section from occurring on the premises.
3. Security guards will have a duty to prevent violations of law and enforce
compliance by patrons of the requirements of these regulations. Security guards must be
uniformed in such a manner so as to be readily identifiable as a security guard by the
public and must be duly licensed as a security guard as required by applicable provisions
of state law. No security guard required under this subsection may act as a door person,
ticket seller, ticket taker, admittance person, performer or sole occupant of the manager's
station while acting as a security guard.
h. Adult live entertainment -- additional operating regulations. The following
additional requirements apply to adult businesses providing adult live entertainment:
1. A person may not perform adult live entertainment for patrons of an adult
business except upon a permanently fixed stage at least eighteen inches (18 ") above the
level of the floor, and surrounded by a three foot (3') high barrier or by a fixed rail at least
thirty inches (30 ") in height. A distance of at least six feet (6'), measured horizontally,
must be maintained between patrons and performers at all times during which a
performer is revealing specified anatomical areas or depicting or engaging in specified
sexual activities. Patrons may not be permitted on the stage while the stage is occupied
by a performer. This provision does not apply to an individual viewing area where the
s
performer is completely separated from the area in which the performer is viewed by an
individual by a permanent floor to ceiling, solid barrier.
2. A performer may not have physical contact with any patron, and patrons may
not have physical contact with any performer, while the performer is performing on the
premises. In particular, a performer may not have physical contact with a patron and a
patron may not have physical contact with a performer, which physical contact involves
the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the
buttocks, perineum, anal region, or female breast with any part or area of any other
person's body either before or after any adult live entertainment by such performer. This
prohibition does not extend to incidental touching. Patrons must be advised of the 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. If necessary, patrons must also be advised of the no touching
requirements by employees or independent contractors of the establishment.
3. All employees and independent contractors of the adult business, except
performers while performing on the fixed stage as provided in subparagraph 1 above,
while on or about the premises, must wear at a minimum an opaque covering which
covers their specified anatomical areas.
4. If patrons wish to pay or tip performers, payment or tips may be placed in
containers placed at least six feet (6) from the stage used by the performers. Patrons
may not throw money to performers, place monies in the performers' costumes or
otherwise place or throw monies on the stage. Patrons must 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.
5. The adult business must provide dressing rooms for performers, that are
separated by gender and exclusively dedicated to the performers' use and which the
performers must use. Same gender performers may share a dressing room. Patrons are
not permitted in dressing rooms.
6. The adult business must provide an entrance /exit to the establishment for
performers that are separate from the entrance /exit used by patrons, and the performers
must use this entrance /exit at all times.
7. The adult business must provide access for performers between the stage and
the dressing rooms that is completely separated from the patrons. If such separate
access is not physically feasible, the adult business must provide a minimum three foot
(3') wide walk aisle for performers between the dressing room area and the stage, with a
railing, fence or other barrier separating the patrons and the performers capable of (and
which actually results in) preventing any physical contact between patrons and
performers. The patrons must remain at least three feet (3') away from the walk aisle.
Nothing in this section is intended to exempt the adult business from compliance with the
provisions of Title 24 of the California Code of Regulations pertaining to handicapped
accessibility.
i. Adult theater -- Additional operating requirements. The following additional
requirements apply to adult theaters:
1. If the theater contains a hall or auditorium area, the area must comply
with each of the following provisions:
i. 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;
ii. Have a continuous main aisle alongside the seating areas in order that
each person seated in the hall or auditorium area is visible from the aisle at all times;
iii. 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 may not exceed the number of seats
within the hall or auditorium area; and
iv. If an adult theater is designed to permit outdoor viewing by patrons
seated in automobiles, it must have the motion picture screen so situated, or the
perimeter of the establishment so fenced, that the material to be seen by those patrons
may not be seen from any public right -of -way, child day care facility, public park, school,
or religious institution or any residentially zoned property occupied with a residence.
j. No owner or operator of any adult business may have pled guilty, nolo
contendere or been convicted within the past three (3) years of any of the following
offenses or convicted of an offense outside the state of California that would have
constituted any of the following offenses if committed within the state of California:
Sections 243.4, 261, 266a through 266j, inclusive, 267, 314, 315, 316, 318, or
subdivisions (a), (b) and (d) of Section 647 of the California Penal Code; any offense
requiring registration under provisions of either Section 290 of the California Penal Code
or Section 11590 of the California Health and Safety Code, or any felony offense
involving the possession, possession for sale, sale, transportation, furnishing, giving
away, of a controlled substance specified in Section 11054, 11055, 11056, 11057 or
11058 of the California Health and Safety Code, as those sections may hereafter be
amended.
k. An owner, operator, employee or performer of an adult business may not
personally solicit, or permit the personal solicitation of, motorists or pedestrians in the
vicinity of the adult business.
I. Every adult business must display at all times during business hours the permit
issued pursuant to the provisions of this section for such adult business in a
conspicuous place so that the permit may be readily seen by all persons entering the
adult business.
G. Prohibited conduct at adult businesses.
1. A person may not operate or cause to be operated an adult business
knowingly, or with reason to know, permitting, suffering, or allowing any employee or
independent contractor-
i. To engage in a lap dance with a patron at the business.
ii. To contract or otherwise agree with a patron to engage in a couch dance,
lap dance, or straddle dance with a person at the business.
iii. To intentionally touch any patron at an adult business while engaged in the
display or exposure of a specified anatomical area or engaged in or simulating a
specified sexual activity.
iv. To voluntarily be within six feet (6') of any patron while engaged in the
display or exposure of any specified anatomical area or engaged in or simulating a
specified sexual activity.
f►00'i -1.4
v. To solicit or request any gratuity, pay, or any other form of consideration
from a patron on the premises of the adult- oriented business while engaged in the
display or exposure of any specified anatomical area or engaged in or simulating a
specified sexual activity.
2. Persons at any adult business may not intentionally touch an employee or
independent contractor who is displaying or exposing any specified anatomical area or
engaging or simulating a specified sexual activity at the adult business.
3. Persons at any adult business may not engage in a couch dance, lap dance
or straddle dance with an employee or independent contractor at the business who is
displaying or exposing any specified anatomical area or engaging in or simulating a
specified sexual activity.
4. Person may not directly pay, offer to pay, or otherwise seek to provide a
gratuity, pay, or any other form of consideration to a performer at an adult- oriented
business. Person may not use an intermediary, such as an employee or independent
contractor to offer, provide, or otherwise pay a gratuity or other form of consideration to
a performer at an adult- oriented business.
5. Employees or independent contractors of an adult business may not engage in
a performance, solicit a performance, make a sale, provide a service, or solicit a service
between the hours of 2 a.m. and 9 a.m.
6. Waiters or waitresses employed at an adult business may not appear on the
premises thereof in the nude, seminude, or display or expose specified anatomical
areas.
H. Permit requirements -- effect of noncompliance. The requirements described in
chapter 5.18.Adult Business Performer Permit are conditions of an adult business permit,
and the failure to comply with any applicable requirement is grounds for revocation of the
permit issued pursuant to this section.
I. Permit duration. An adult business permit will be valid for a period of one (1) year
from the date of issuance.
J. Permit renewal. An adult business permit must be renewed on an annual basis,
provided that the permittee and the adult business continues to meet all applicable
requirements set forth in this section. A request for permit renewal must be
accompanied by an adult business permit application, completed in full detail with
current information. The application and appropriate fee must be received by the city at
least forty (45) calendar days prior to the expiration of the existing permit. The city will
process a request for a permit renewal in the same manner as the original application.
K. Permit transferability. Adult business permits may not be sold, transferred, or
assigned by any permittee, or by operation of law, to any other person unless and until
the transferee obtains an amendment to the permit from the director stating that the
transferee is now the permittee. Such an amendment may be obtained only if the
transferee files an application with the director in accordance with section 17.28.050D
(including payment of the applicable application fee), and the director determines in
accordance with section 17.28.050E that the transferee would be entitled to the
issuance of the original permit. Without such amendment to the permit, any other
purported sale, transfer, or assignment or attempted sale, transfer, or assignment will
be deemed to constitute a voluntary surrender of the permit and thereafter the permit
will be null and void. An adult business permit held by a corporation, partnership or
00o" ; -Ts
limited liability company is subject to the same rules of transferability. An adult business
permit will be valid only for the exact location specified in the permit.
L. Enforcement and revocation.
1. Inspections. All code compliance officers have the right to enter the premises
of an adult business from time to time during regular business hours to make
reasonable inspections, to observe and enforce compliance with building, fire, electrical,
plumbing or health regulations, and to ascertain whether there is compliance with the
provisions of this section.
2. Revocation grounds. The director may revoke an adult business permit when:
i. Any of the applicable requirements of this section ceases to be satisfied; or
ii. The application is discovered to contain incorrect, false or misleading
information; or
iii. An owner has pled guilty, nolo contendere or been convicted of a felony or
misdemeanor occurring upon, or relating to the premises or lot upon which the adult
business is located, which offense is one of those listed in section 17.28.050F2j; or
iv. Any operator, employee, agent or contractor of the permittee has pled guilty,
nolo contendere or been convicted on two or more occasions within a 12 -month period
of a felony or misdemeanor occurring upon, or relating to the premises or lot upon which
the adult business is located, which offense is one of those listed in section
17.28.050F2j; or
v. The permittee, operator or any employee, agent or contractor of the owner has
knowingly allowed prostitution, or solicitation for prostitution, on the premises; or
vi. The permittee, operator or any employee, agent or contractor of the owner
has knowingly allowed the premises to be used as a place where a controlled
substance has been illegally consumed, sold or exchanged; or
vii. The adult business has been operated in violation of any of the requirements
of this section and;
(a) If the violation is of a continuous nature, the business continues to be
operated in violation of such provision for more than ten (10) days following the date
written notice of such violation is mailed or delivered to the permittee, or
(b) If the violation is of a noncontinuous nature, 1 or more additional
violations of the same provision, or two (2) or more violations of any other of the
provisions, of this section occur (regardless of whether notice of each individual
violation is given to the permittee) within any 12 -month period.
3. Revocation notice. Upon determining that grounds for permit revocation exist,
the director will furnish written notice of the proposed revocation to the permittee. Such
notice must summarize the principal reasons for the proposed revocation and state that
the revocation will become effective on the 20th day after the notice was deposited in
the U.S. mail, unless the permittee files an appeal under section 17.28.050M. The
notice must be delivered both by posting the notice at the location of the adult business
and by sending the same, certified mail to the permittee as that name and address
appears on the permit.
M. Appeals.
1. Any interested person may appeal a decision of the director regarding an
application or revocation of an adult business permit by filing with the city clerk a
complete notice of appeal within fifteen (15) calendar days from the date notice of such
decision is mailed. To be deemed complete, the appeal must be in writing, state the
grounds for disagreement with the director's stated decision, include the address to
which notice is to be mailed, be signed under penalty of perjury, and be accompanied
by the filing fee established by city council resolution.
2. If an appeal is timely filed, the city council will at the next regularly scheduled
city council meeting held more than five (5) calendar days after receipt of such notice of
appeal, review the matter and determine whether the city council or a hearing officer will
hear the appeal.
3. The city council or the hearing officer, as the case may be, must set a date,
not less than five (5) calendar days, and not more than twenty -one (21) calendar days
from the date such determination is made by the city council for the hearing of the
appeal. The hearing may be continued for good cause. The hearing will be a de novo
hearing on the action appealed from.
4. The hearing officer or city council will issue written findings and a decision
within ten (10) calendar days of the conclusion of the hearing, and send notice of the
decision by certified mail to the appellant. The notice of the decision must include
reference to the appellant's right to prompt judicial review under California Code of Civil
Procedure section 1094.8.
5. The action by the hearing officer or city council will be final unless timely
judicial review is sought pursuant to California Code of Civil Procedure section 1094.8.
N. Reapplication after denial or revocation.
1. Reapplication after denial. An applicant for a permit under this section whose
application for such permit has been denied may not reapply for a permit for a period of
one (1) year from the date such notice of denial may be deposited in the mail or
received by the permittee, whichever occurs first. However, a reapplication prior to the
termination of one (1) year may be made if accompanied by evidence that the ground or
grounds for denial of the application no longer exists.
2. Reapplication after revocation. No person may obtain an adult business
permit for three (3) years from the date any order of permit revocation affecting such
person has become final.
O. Violations.
1. Any owner, operator, permitee, employee or independent contractor of an
adult business violating or permitting the violation of any of the provisions of this section
regulating adult businesses will be subject to any and all civil remedies, including
license or permit revocation. All remedies provided herein are cumulative and not
exclusive.
2. In addition to the remedies set forth in subsection 1., any adult business that is
operating in violation of these provisions regulating adult businesses is hereby declared
to constitute a public nuisance and, as such, may be abated or enjoined from further
operation.
3. The regulations imposed under this section are part of a regulatory permitting
process, and do not constitute a criminal offense. Notwithstanding any other provision
of the Moorpark Municipal Code, the city does not impose a criminal penalty for
violations of this section related to expressive activities.
()() (jii`z,i
P. Regulations nonexclusive. The provisions of this section regulating adult businesses
are not intended to be exclusive and compliance therewith will not excuse noncompliance
with any other applicable regulations pertaining to the operation of businesses adopted by
the city.
Gii)±la�% 'j !ti
EXHIBIT D
CHAPTER 5.18
ADULT BUSINESS PERFORMER PERMIT
5.18.010.
Purpose.
5.18.020.
Definitions.
5.18.030.
Adult business performer Permit required.
5.18.040.
Investigation and action on Permit application.
5.18.050.
Permit revocation.
5.18.060.
Appeals.
5.18.070.
Display of identification cards.
5.18.080.
Permit non - transferable.
5.18.090.
Violations
5.18.010. Purpose.
The purpose of this chapter is to require a permit for adult business performers to (1)
protect minors by requiring that all performers be over the age of 18 years; (2) assure
the correct identification of persons performing in adult businesses; (3) enable the city to
deploy law enforcement resources effectively; and (4) detect and discourage the
involvement of crime in adult businesses by precluding the licensing of performers with
certain sex - related convictions within a prescribed time period.
It is neither the intent nor the effect of these regulations to invade the privacy of
performers or to impose limitations or restrictions on the content of any communicative
material. Similarly, it is neither the intent nor the effect of these regulations to restrict or
deny access by adults to communicative materials or to deny access by the distributors
or exhibitors of adult businesses to their intended lawful market.
Nothing in these regulations is intended to authorize, legalize, or permit the
establishment, operation, or maintenance of any business, building, or use which
violates any city ordinance 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.
5.18.020. Definitions.
The definitions contained in the section 17.28.050 of this code also apply to this chapter
with the following additions:
"Director" means the community development director or the manager of the community
development department of the city of Moorpark or the director's designee.
"Permittee" means a person who is issued an adult business performer permit under
this chapter.
5.18.030 Adult business performer permit required.
Upon verification of compliance with section 17.28.040N and section 17.28.050 that the
place of business has a valid adult business permit authorized to provide adult live
entertainment, an adult business performer permit may be issued. The applicant must
meet the requirements of this chapter in order to obtain a permit.
A. A performer may not 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 adult business performer
permit issued by the city.
B. The director is responsible for the processing, investigation and issuance of adult
business performer permits in accordance with this chapter.
C. Permit applicants must file a permit application or renewal application on a form
provided by the director. At minimum, this application form will contain the following
information:
1. The 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 or proposed business address and telephone number of the
establishments at 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 permit applicant is a least 18 years of
age.
9. The permit applicant's fingerprints on a form provided by the city and two
passport-size photographs clearly showing the applicant's face. Any fees for the
photographs and fingerprints will be paid by the applicant. Fingerprints and
photographs must be taken within 6 months of the date of application.
10. Whether the applicant, has pled guilty, nolo contendere or been convicted
of an offense classified by this or any other state as a sex - related offense and less than
a. Two (2) years have elapsed since the date of conviction or the date of release
from confinement of conviction to the date of application, whichever is the later date, if
the conviction is a misdemeanor; or
b. Five (5) years have elapsed since the date of conviction or the date of release
from confinement of conviction to the date of conviction, whichever is the later date, if
the conviction is a felony; or
c. 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.
11. If the application is made for the purpose of renewing a permit, the
applicant must attach a copy of the permit to be renewed.
D. The information provided above in subsection C 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 residence address, telephone number, date of birth
and age, driver's license and social security number. The city council in adopting the
permit system set forth in this chapter has determined in accordance with California
Government Code section 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 interest are
protected. The city clerk will cause this information described above to be redacted
from any copy of a completed application form made available to any member of the
public.
E. The completed application must be accompanied by a non - refundable application fee
and an annual permit fee. The amount of such fees will be as set forth in the schedule of
fees established by resolution from time to time by the city council.
F. The director will determine whether the application is complete within two (2)
business days. If the director determines that the application is incomplete, the director
must 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 adult business performer application, the director will immediately issue
a temporary permit that will automatically expire ten (10) business days from the date of
issuance unless extended by the director for an additional ten (10) business days. Only
one extension may be granted. This temporary adult business performer permit
authorizes a performer to commence performance at an adult business that possesses
a valid adult business permit authorized to provide adult live entertainment.
G. Possession by the permit applicant of other types of state or city permits or licenses
does not exempt the permit applicant from the requirement of obtaining an adult
business performer permit.
5.18.040. Investigation and action on permit application.
A Upon submission of a completed application and issuance of a temporary adult
business performer permit, the director will promptly cause the investigation of the
information contained in the application to determine whether the applicant should be
issued an adult business performer permit.
B. The director's decision to grant or deny the adult business performer permit must be
made within ten (10) business days from the date the temporary license was issued or
extended, whichever is later. If the application is denied, the director must include a
written statement of the reasons for the denial. Such notice must also advise the
applicant of the right to appeal the denial under Section 5.18.060. If the application is
granted, the director will attach the adult business performer permit to the notice. The
decision will be mailed or personally delivered to the applicant at the address provided
in the application.
C. The director shall deny the application based on any of the following grounds:
1. The applicant has made false, misleading, or fraudulent statement of material
fact in the application for an adult business performer permit.
2. The applicant is under 18 years of age.
3. The adult business performer permit is to be used for performing in a business
prohibited by laws of the state or city or at a business that does not have a valid adult
business permit.
00011"�i 1
4. The occurrence of any of the events set forth in Section 5.18.030C10.
D. If the director fails to render a decision on the permit within the time frame
established by this section, the application will be deemed approved, subject to an
appeal under Section 5.18.060.
E. Each adult business performer permit, other than the temporary permit described in
Section 5.18.020F, will expire 1 year from the date of issuance and may be renewed
only by filing with the director a written request for renewal at least thirty (30) calendar
days prior to the expiration of the permit, accompanied by the annual permit fee and a
copy of the permit to be renewed. If the application conforms to the previously
approved application and there has been no change with respect to the permittee being
convicted of any crime classified by this or any other state as a sex - related offense, the
director will renew the permit for one (1) year. An application for renewal will be acted
upon in the same manner as the application for the original permit. If the director denies
renewal of the application, that decision is also appealable under Section 5.18.060.
5.18.050. Revocation of license.
A. A permit may be revoked, based on any of the following causes arising from the acts
or omissions of the permittee:
1. The permittee has made any false, misleading, or fraudulent statement of
material fact in the application for a performer permit.
2. The permittee has pled guilty, nolo contendere or been convicted of an offense
as set forth in Section 5.18.030C10.
3. The permittee has failed to comply with any of the operating standards of
Chapter 5.18 applicable to a performer or the requirements of this chapter.
B. On determining that grounds for license revocation or suspension exist, the director
will furnish written notice of the proposed action to the permittee. Such notice will set
forth the time and place of a hearing before the city manager, the city manager's
designee or a city manager appointed hearing officer, the grounds, including the factual
matters, in support of such proposed action, and the pertinent code sections. The
notice will be mailed, postage prepaid, to the last known address of the permittee, or
personally delivered to the permittee, at least ten (10) business days prior to the hearing
date.
C. At the hearing, the permittee will have the right to offer testimonial, documentary, and
tangible evidence bearing upon the issues and may be represented by counsel. The
city manager, the city manager's designee or a city manager appointed hearing officer
will 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 permittee.
D. After the hearing, the city manager, the city manager's designee or a city manager
appointed hearing officer will either sustain or overrule the decision of the director and
render a written decision within five (5) business days of the hearing. The decision will
be sent by certified mail to the applicant or licensee. The decision of the city manager,
the city manager's designee or a city manager appointed hearing officer must include
reference to the right to prompt judicial review under California Code of Civil Procedure
section 1094.8.
The action by the city manager, the city manager's designee or a city manager
appointed hearing officer will be final unless timely judicial review is sought pursuant to
California Code of Civil Procedure section 1094.8.
5.18.060 Appeals.
A. Any interested person may appeal a decision of the director regarding an application
for an adult business performer permit by filing with the city clerk a complete notice of
appeal within fifteen (15) calendar days from the date notice of such decision is mailed.
To be deemed complete, the appeal must be in writing, state the grounds for
disagreement with the director's stated decision, include the address to which notice is
to be mailed, be signed under penalty of perjury, and be accompanied by the filing fee
established by city council resolution.
B. If an appeal is timely filed, the city manager, the city manager's designee or a city
manager appointed hearing officer will hear the appeal.
C. The city manager, the city manager's designee or a city manager appointed hearing
officer, as the case may be, must set a hearing date not more than twenty -on (21)
calendar days from the date of the filing of the appeal. The hearing may be continued
for good cause.
D. The city manager, the city manager's designee or a city manager appointed hearing
officer will issue findings in writing within five (5) business days of the conclusion of the
hearing. The written findings and decision will be sent by certified mail to the appellant.
The notice of the decision must include reference to the appellant's right to prompt
judicial review under California Code of Civil Procedure section 1094.8.
E. The action by the city manager, the city manager's designee or a city manager
appointed hearing officer will be final unless timely judicial review is sought pursuant to
California Code of Civil Procedure section 1094.8.
5.18.070. Permit identification cards.
The director will provide each adult business performer whose application is approved
with an identification card containing the name, address, photograph, and license
number of such performer. Every performer must have such card available for
inspection at all times during which the performer is on the premises of the adult
business at which he or she performs.
5.18.080. Adult business performer permit non - transferable.
No adult business performer permit may be sold, transferred, or assigned by any
permittee or by operation of law, to any other person. Any such sale, transfer, or
assignment, or attempted sale, transfer, or assignment will be deemed to constitute a
voluntary surrender of the adult business performer permit, and the permit thereafter will
be null and void.
5.18.090. Violations.
A. Any permittee violating any of the provisions of this chapter or the provisions of
section 17.28.050 regulating adult business performers will be subject to permit
revocation, and any and all other civil remedies. All remedies provided herein are
cumulative and not exclusive. Any such violation will constitute a separate violation for
each and every day during which such violation is committed or continued.
B. The restrictions imposed pursuant to this chapter are part of a regulatory licensing
process, and do not constitute a criminal offense. Notwithstanding any other provision
of the Moorpark Municipal Code, the city does not impose a criminal penalty for
violations of the provisions of this chapter related to expressive conduct or activities.