Special Use Regulations

ARTICLE 4 SPECIAL USE REGULATIONS -------------------- (go to main index)

10-2.1620 Adult Use Permits

(a) Purpose. The uses defined in Section 10-2.402 as adult uses are of such character that their unrestrained location can and has caused or contributed substantially to blighted neighborhoods, residential and commercial, and therefore, the following regulations are enacted in addition to all other applicable land use and development standards in this chapter. The language employed in this section is for the sole and exclusive purpose of adopting the restrictive provisions of the zoning legislation approved by the United States Supreme Court in Young v. American Mini Theaters 427 U.S. 50 (1976), City of Renton v. Playtime Theaters Inc 475 U.S. 41 (1986) and Barnes v. Glen Theater Inc. 111 S.Ct. 2456 (1991). Nothing set forth in this Title or in Title 6 of this Code shall authorize, legalize or permit the establishment, operation or maintenance of any business, building or activity which violates any municipal ordinance or provision of the Penal Code or Civil Code of the State regarding nuisances, sexual conduct, lewdness, assignation, prostitution, or obscene or harmful matter, nor shall the use of such language be interpreted to legalize the types of businesses which promote such violations.
(b) Adult Use Permit required. It shall be unlawful to engage in any adult use as defined in Section 10-2.402 without first obtaining an Adult Use Permit under this section.

(1) Exemption for ancillary adult use. An ancillary adult use shall be exempt from the requirements of this section provided a site plan is on file with the Planning Division demonstrating that only an ancillary portion of the business consists of an adult use. The establishment shall maintain adequate records to substantiate the percentage of the overall business operations consisting of an adult use. The adult use shall be considered ancillary if all of the following apply:

a. The adult use comprises less than twenty-five (25%) percent of the overall business operations as measured by the percentage of gross sales or floor area devoted to adult merchandise or service;
b. The adult use is not advertised as such by signs on the site advertising the adult use or by adult merchandise visible from the exterior of the building; and
c. The adult use is separated from and screened from the area into which minors are permitted.

(c) Definitions. For the purpose of this section, unless the context clearly indicates otherwise, the words, terms, and phrases shall have the following meanings:

(1) "Individual viewing area" shall mean any area designed for occupancy of one person for the purpose of viewing performances, pictures, movies, videos or other presentations.
(2) "Person" shall mean individuals, firms, corporations, partnerships, associations, or any other forms of business organization or group.
(3) "Religious institution" shall mean a structure which is used primarily for religious worship and related religious activities.
(4) "School" shall mean any child day care center or a public or private institution of learning for minors, which offers instruction in those courses of study required by the California Education Code or which is maintained pursuant to standards set by the State Board of Education. This definition includes preschools, kindergartens, elementary schools, junior high schools, senior high schools or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college or university.

(d) Application. Applicants for an Adult Use Permit shall file a written application on a form supplied by the Planning Division which shall be signed by the property owner or his or her authorized representative and (if different) the applicant under penalty of perjury. Said form shall be accompanied by a nonrefundable fee which shall be set from time to time by resolution of the City Council.
(e) Contents of application. The application shall at a minimum provide the following information:

(1) The name(s) and mailing addresses of the property owner(s) and proposed business operators;
(2) The property location, including assessor's parcel number;
(3) The name and nature of the business and activities to be conducted on the property;
(4) The proposed hours of operation;
(5) The form(s) of security proposed;
(6) The manner of enforcing age restrictions;
(7) A detailed floor plan drawn to scale and dimension showing the uses within each room and the location of all walls and partitions including their height and material of construction;
(8) A detailed site plan drawn to scale and dimensioned including: all buildings and structures on the site; ingress and egress to the site; parking areas; setbacks and spaces between buildings; walls, fences, and landscaping and their location, height, and materials; location and design of exterior lighting sources, including illumination levels in footcandles at ground level; the location of security monitoring systems; and trash and recycling facilities;
(9) The location of all doors and windows, including sizes, materials and coverings if any;
(10) The architectural exterior elevations drawn to scale and dimension depicting design including colors, signage, materials, ornaments or other architectural features and any other appurtenances;
(11) All other information required to provide an explanation as to how the proposed project will comply with the requirements of this section and such other information as the Chief of Planning shall deem appropriate.

(f) Setting hearing. The Planning Commission shall hold a public hearing regarding approval or denial of the Adult Use Permit. The hearing before the Planning Commission shall be held no more than forty-five (45) days from the date on which the completed application and fee are accepted by the Planning Division. This time period may not be extended without the express written consent of the applicant.
(g) Notice of public hearing before the Planning Commission. Notice of public hearing before the Planning Commission to consider an application for an Adult Use Permit shall be given as follows:

(1) By publication at least once in a weekly newspaper of general circulation in the City not less than ten (10) calendar days prior to the date of the public hearing; and
(2) By mailing a written notice thereof, not less than ten (10) days prior to the date of such hearing to the applicant, to the owner of the subject property and to the owners of properties within 300 feet of the exterior boundary of the subject property or properties; such notices shall be sent by first-class mail, with postage prepaid, using the addresses from the last adopted tax roll, if available; and
(3) By posting such notice in at least one prominent place on or about each parcel which is the subject of the proposed action, or upon utility poles or sticks along or about the street line of such parcel. In the event more than one parcel is the subject of such hearing, and such parcels comprise 200 or more feet of street frontage, at least one such notice shall be posted on or about the street line at intervals of not less than 200 feet, starting at either end of the subject properties where the property line intersects the street line.

(h) Decision of the Planning Commission.

(1) At the hearing the applicant shall be entitled to present relevant evidence, call witnesses, and present arguments in favor of granting the permit. The traditional rules of evidence shall not apply to such hearings;
(2) At the hearing the Planning Commission shall approve, deny, or approve with conditions, the Adult Use Permit. The hearing may not be continued without the express consent of the applicant;
(3) The applicant shall be mailed written notification of the Planning Commission's decision and the reasons therefor within five (5) working days of the date of the Commission's decision. The notice shall specify that the applicant may appeal the Commission's decision to the City Council as provided for under subsection I of this section and that any court action challenging the decision must be commenced within ninety (90) days after the date of a final decision in accordance with Code of Civil Procedure Section 1094.6;
(4) Notices shall be provided to the applicant by certified mail, return receipt requested.

(i) Appeal of decision of the Planning Commission. A decision by the Planning Commission for the approval or denial of an application for Adult Use Permit shall be final and conclusive unless, by 5:00 p.m. of the tenth (10th) day following such decision (or of the next working day if the tenth (10th) day falls on a weekend or holiday):

(1) A written appeal on the form designated by the City is filed by any interested party with the City Clerk requesting a public hearing before the City Council stating the grounds for the appeal and all required fees for said appeal are paid in full; or
(2) The Mayor or a member of the City Council requests a public hearing before the City Council stating the grounds for the appeal. Provided however that the City Council member or Mayor requesting the appeal shall disqualify him or herself from hearing the appeal unless he or she can certify in writing that the appeal is being requested as a result of public interest in the decision to be reviewed and he or she has no predisposition against or in favor of the project. The City Council as a whole shall be prohibited from voting to appeal any matter in which they will sit as the reviewing body.
Such appeal, or City Council request for a public hearing, shall be set for a public hearing by the City Clerk no less than forty-five (45) days from the date on which the appeal period expires. This time period may not be extended without the express written consent of the applicant.

(j) Notice of hearings before the City Council. Notice of public hearing before the City Council to consider an appeal of the decision of the Planning Commission shall be given pursuant to subsection (g) of this section.
(k) Decision of the City Council. The decision of the City Council on all applications shall be final and conclusive.
(l) Criteria For Permit Issuance. The Planning Commission shall approve an Adult Use Permit if the following requirements are met:

(1) The adult use shall be located in the I-1, I-1A, I-1B, or I-1C, zones;
(2) The adult use shall not be located within 300 feet of any residential zone or any actual legal residential use;
(3) The adult use shall not be located within 500 feet of any lot upon which there is legally located a religious institution, public park, or school.
(4) The adult use shall not be located within 1,000 feet of any other adult use.
(5) The adult use shall comply with all applicable development and design standards of the zone in which it is located.
(6) The adult use shall comply with the appropriate sign regulations for the zone in which it is located.
(7) The adult use shall not be conducted in any portable or mobile structure or pushcart.
(8) The adult use shall conform to the appropriate parking regulations under this chapter and shall not sponsor any special events, promotions, festivals, concerts or other similar events which would increase the demand for parking beyond the approved number of spaces for the particular use.
(9) Any adult use involving live entertainment must also obtain an entertainment permit pursuant to Article 4, Chapter 17 of this Code.
(10) No adult use shall provide the service or sale of alcoholic beverages without first obtaining a Conditional Use Permit pursuant to the procedures of Section 10-2.2506 of this chapter.
(11) The adult use shall not be conducted with any massage, acupuncture, accupressure, fortune telling, or escort services on the premises;
(12) The permittee shall provide a security system that visually records and monitors all parking lot areas. Recordings made pursuant to this requirement shall be maintained for a minimum of fourteen (14) days;
(13) All indoor areas of the premises upon which the adult use is conducted shall be open to public view at all times, except restroom facilities. "Accessible to the public" shall include, but not be limited to, those areas which are only accessible to members of the public who pay a fee and/or join a private club or organization.
(14) There shall be no display of any sexually oriented material or sexually oriented merchandise on the premises upon which an adult use is conducted which would be visible from any location other than from within the premises;
(15) The premises upon which the adult use is conducted shall not allow admittance of any person under the age of eighteen (18) years if no liquor is served, or under the age of twenty-one (21) years if liquor is served. The minimum age for admittance shall be posted at the entrance to the premises.
(16) The adult use shall not operate between the hours of 2:00 a.m. and 7:00 a.m.
(17) The premises on which an adult use is conducted shall have separate restroom facilities for male patrons and employees and female patrons and employees. Male patrons and employees shall be prohibited from using the restroom(s) for females and female patrons and employees shall be prohibited from using the restrooms for males, except to carry out duties of repair, maintenance and cleaning of the restroom facilities. The restrooms shall be free from any adult-oriented material. Restrooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment.
(18) All areas of the premises on which an adult use is conducted shall be illuminated at a minimum of fifteen (15) footcandles evenly distributed at ground level.
(19) No solicitation of trade may be made at or near the entrance to the premises on which an adult use is conducted by any means other than signage which complies with the appropriate sign regulations of the City.
(20) All required permits and licenses shall be conspicuously posted at a location where they may be observed by any member of the public.
(21) Any adult use which permits patrons to view live, filmed or recorded entertainment or to use or consume products or services on the premises, shall conform to the following requirements:

a. At least one security guard shall be on duty outside the premises patrolling the grounds and parking areas at all times during hours of operation. If the occupancy limit of the premises is greater than fifty (50) persons an additional security guard shall be on duty inside the premises. The security guard shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of this code and notifying the City Police Department and Code Enforcement Officer of any violations of law. Said security guard shall be uniformed in such manner as to be readily identifiable to the public as a security guard. No security guard required hereunder shall act as a doorperson, ticket seller, ticket taker, admittance person or any other capacity while acting as a security guard hereunder; and
b. No exterior window or door on the premises in which an adult use is conducted shall be propped or kept open at any time during hours of operation. Any exterior windows shall be covered with opaque covering at all times; and
c. Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance/exit to the premises on which an adult use is conducted.

(22) The following additional requirements shall pertain to adult coin operated businesses, adult arcades, or any adult use which provides one or more individual viewing areas:

a. The application for the adult use shall be accompanied by a diagram of the premises showing a plan specifying the location of one or more manager's stations, the location of all overhead lighting fixtures, and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area and no dimension may exceed eight (8) feet. Each such diagram shall be oriented to the north or to some designated street or object and shall be drawn to a designated scale with marked dimensions sufficient to show the various internal dimensions of all areas of the interior; and
b. At least one employee shall be on duty and situated at a manager's station at all times that any patron is present; and
c. The interior shall be configured in such a manner so that there is an unobstructed view from a manager's station of every area to which any patron is permitted access, excluding restrooms. If two (2) or more manager's stations are designated, then the interior shall be configured in such a manner that there is an unobstructed view of every area to which any patron is permitted access, excluding restrooms from at least one of the stations. The view required by this subsection shall be by direct line of sight. No alteration in the configuration of the interior floorplan may be made without the consent of the Chief of Planning; and
d. All individual viewing areas within the premises shall be visible from a continuous and visually accessible main aisle in a public portion of the establishment, and shall not be obscured by any door, curtain, wall, two-way mirror or other device which would prohibit a person from seeing into the individual viewing area; and
e. No individual viewing area shall be occupied by more than one person at any time; and
f. Individual viewing areas shall be operated and maintained without any hole or other opening or other means of direct communication or visual or physical access between the interior space of two (2) or more individual viewing areas.

(m) Measurement of Distance.

(1) The distance between an adult use and the uses listed in subsections (l)(2), (l)(3), and (l)(4) of this section shall be measured in a straight line, without regard to intervening structures, from the closest property line of the parcel on which the adult use is conducted to the nearest property line of the parcel on which such uses listed in subsections (l)(2), (l)(3), and (l)(4) of this section are located.
(2) Once an adult use obtains an Adult Use Permit pursuant to this section, the subsequent establishment of any use listed in subsection (l)(2) or (l)(3) of this section within the restricted distances shall not render the adult use non-conforming.

(n) Inspections. The permittee shall permit officers of the City to conduct unscheduled inspections of the premises on which the adult use is operated for the purpose of insuring compliance with the law at any time the adult use is open to the public.
(o) Revocation.

(1) Revocation grounds. The Chief of Planning shall revoke an Adult Use Permit upon discovering that any of the following have occurred:

a. The adult use has been or continues to be operated in violation of any of the requirements of this section, a written notice of such violation has been sent to the permittee and the violation continues or reoccurs within six (6) months of service of the notice; or
b. The application is found to contain incorrect, false, or misleading information; or
c. A court of competent jurisdiction has found the adult use to constitute a public nuisance.

(2) Revocation notice. Upon determining that the grounds for revocation exist the Chief of Planning shall furnish written notice of the revocation to permittee. Such notice shall summarize the principle reasons for the revocation, and shall state that the permittee may file an appeal of the Chief of Planning's decision with the City Clerk within ten (10) calendar days from the date of the notice. Absent a timely appeal the decision of the Chief of Planning shall be final. A timely appeal shall stay the revocation pending final decision on the appeal.
(3) Appeal. An appeal shall not be considered timely unless received in writing within the time set forth above together with the full amount of the appeal fee, which may be set by resolution of the City Council. A hearing before the City Manager or his or her designee shall be set within thirty (30) days of receipt of the written appeal and fee. Notice of the appeal hearing shall be provided as set forth in Government Code Section 65091.
(4) Hearing. At the hearing the permittee shall be entitled to present relevant evidence, call witnesses, and present arguments in opposition to revoking the permit. The traditional rules of evidence shall not apply to such hearings. The determination of the City Manager or his or her designee on the appeal shall be based on the factors set forth in subsection (o)(1) of this section. The City Manager or his or her designee shall rule on the appeal within ten (10) calendar days of the conclusion of the hearing.
(5) Notice of decision. The permittee shall be mailed written notice of the decision on the appeal and the grounds therefor within three (3) working days of the decision. The notice shall specify that the decision is final and that any action challenging the decision must be commenced within ninety (90) days after the date of a final decision in accordance with Code of Civil Procedure Section 1094.6. Notice shall be delivered by certified mail, return receipt requested, to the permittee as that name and address appear on the permit. In addition the notice of revocation shall be posted at the location of the premises on which the adult use is conducted.

(p) Moratorium after revocation. If an Adult Use Permit is revoked no Adult Use Permit shall be issued for the same location for a period of two (2) years from the effective date of revocation.
(q) Violation and penalty.

(1) Every person, whether acting as an individual owner, employee of the owner, permittee, chief executive officer of a permittee, majority shareholder of a permittee, or operator or employee of the permittee, or whether acting as a mere helper of the owner, permittee, employer or operator, or whether acting as a participant or worker in any way, who operates or conducts or who participates in operating or conducting an unpermitted adult use, or who violates any provisions of this Article shall be guilty of a misdemeanor. Each day the violation continues shall be regarded as a separate offense for which the full penalty may be imposed.
(2) Any adult use operated, conducted, or maintained contrary to the provisions of this Article is unlawful and a public nuisance. The City Attorney may, in lieu of or addition to criminal prosecution of a criminal action against the violator, commence a civil action for the abatement, removal and enjoinment of such violations and shall take such other steps and apply to such other court or courts as may have jurisdiction to grant such relief as will abate or remove such adult use and restrain and enjoin any person from operating, conducting or maintaining such a use contrary to the provisions of this Article. The City shall be entitled to attorney fees in such an action.

(Ord. 2756 c.s., eff. January 18, 1996)

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