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PC - Item 4B - Minicipal Code Amendment 10-04 Amending Regulations Pertaining to the Development and Operation of Adult Businesses
n • • TO: THE HONORABLE CHAIRMAN AND MEMBERS OF THE ROSEMEAD PLANNING COMMISSION FROM: PLANNING DIVISION DATE: MARCH 7, 2011 SUBJECT: MUNICIPAL CODE AMENDMENT 10 -04, AMENDING THE ROSEMEAD MUNICIPAL CODE TO REVISE REGULATIONS PERTAINING TO THE DEVELOPMENT AND OPERATION OF ADULT BUSINESSES IN THE CITY OF ROSEMEAD SUMMARY Municipal Code Amendment 10 -04 is a City initiated amendment to revise Title 5 (Business Licenses and Regulations) and Title 17 (Zoning) of the Rosemead Municipal Code. The purpose of the amendments are to revise the regulations for adult businesses in order to prevent their concentration or proximity to incompatible uses, and avoid negative secondary effects associated with adult business uses. The proposed adult business ordinance addresses licensing /permitting provisions, operating standards, and zoning limitations for these adult businesses. ENVIRONMENTAL DETERMINATION Municipal Code Amendment 10 -04 is proposed in order to mitigate the threat posed to the public peace, health, or safety by adult businesses. In this regard, the proposed regulations provide for the amendment of existing regulations applicable to adult businesses and provides for zoning regulations which are specifically applicable to adult business uses. Such uses are already allowed under the City's existing zoning regulations. Therefore, it can be seen with certainty that there is no possibility that these regulations may have a significant adverse effect on the environment, and therefore the adoption of these regulations are exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines. STAFF RECOMMENDATION Staff recommends that the Planning Commission ADOPT Resolution No. 11 -02 (Exhibit "A "), a resolution recommending that the City Council ADOPT Ordinance No. 903 (Exhibit "B "), amending Title 5 and Title 17 of the Rosemead Municipal Code to revise adult business standards. Planning Commission Meeting March 7, 2011 Page 2 of 11 BACKGROUND The existing Rosemead Municipal Code (RMC) regulations for adult businesses are contained within Chapters 5.08, 17.44, and 17.80 of the RMC. These regulations were adopted by Ordinance No. 753 on May 25, 1995. Chapter 5.08 contains the current business licensing requirements for adult- entertainment businesses. These include application, investigation, inspection, and operating requirements as well as procedures for hearings and revocations. The City Council must approve all adult - entertainment license applications. A standard business license is also required. Chapter 17.44 of the RMC allows adult— oriented businesses to locate in the C -3 (Medium Commercial) zone subject to the approval of an adult- oriented business permit by the City Council in accordance with Chapter 17.80 of the RMC. Chapter 17.80 of the RMC contains the land use regulations for adult- oriented businesses. This chapter contains definitions, permit application procedures, and development standards to protect the community from the negative secondary affects of adult- oriented businesses. In addition to the adult - entertainment license and standard business license required by Chapter 5.08, the City Council must also approve an adult - oriented business permit required by Chapter 17.80 at a duly noticed public hearing. On June 30, 2009, The City Council determined that the adult business regulations should be revised and updated. Pursuant to Government Code section 65858, the Rosemead City Council enacted Urgency Ordinance No. 878 (Exhibit "C "), which imposed a moratorium on the approval of applications for land use entitlements for adult businesses for a period of 45 days (the "Initial Ordinance ") while the City's regulations and recent developments in case law related to adult business regulations were studied. The City Council subsequently adopted Ordinance No. 880 to extend the moratorium for an additional ten (10) months and fifteen (15) days. While City staff has begun a review of these studies, it was determined that additional time was needed to reach a conclusion as to the changes that are needed to Ordinance No. 753 in order for that ordinance to reflect the proper balance between time, place, and manner regulations that address the adverse secondary effects of adult businesses and the expressive activities protected by the First Amendment of the United States and California Constitutions. In addition, City staff requested time to craft an appropriate balance between the legal protections afforded adult businesses and the community's legitimate concerns about the secondary effects of those businesses. On May 11, 2010, the City Council adopted Urgency Ordinance No. 894 to extend the moratorium for one (1) additional year to May 10, 2011. Planning Commission Meeting March 7, 2011 Page 3 of 11 "MITRWR Legal Basis /Constitutional Constraints Certain adult businesses, such as adult bookstores, adult videos stores, and adult cabarets, engage in activities recognized as protected speech under the First Amendment of the United States Constitution. Traditional constitutional analysis divides the range of protected speech regulations into two main categories: (1) content based; and (2) content neutral (i.e., regulations not based on content but rather imposing reasonable time, place, and manner restrictions). Content -based regulation is specifically aimed at the speech's content. Any such content based regulation carries with it a very high burden for a public agency to show it has a compelling interest in such regulation. In contrast, content neutral regulations are aimed at protecting governmental interests unrelated to the content of speech, such as traffic or noise regulation applied to all types of commercial uses, for purposes of furthering the public health, safety, and welfare. The proposed ordinance is designed to satisfy the content neutrality standard by narrowly tailoring the regulations to further the City's purposes and goals in limiting and preventing the negative secondary effects associated with adult businesses. As a result of the First Amendment protection afforded to various adult businesses (adult bookstores, video stores and live entertainment), conditions cannot simply be imposed upon an adult facility in an effort to preclude the facility's operation. Any condition(s) must be predicated on the reduction of the secondary effects. These adverse secondary effects include: urban blight; increased crime; decreased property values; diminished retail trade; prostitution; the spread of sexually transmitted diseases; and illegal drug transactions. It is important to note that the purpose of the proposed regulations is not to prohibit or otherwise regulate child pornography or obscenity because such material is not now, nor has it ever been, granted constitutional protection, and is regulated by other State and federal regulations. Furthermore, local regulation of obscene material has been preempted by state and federal law. Therefore, the intent of the proposed regulations is to address the adverse secondary effects that are caused by adult entertainment facilities. Case law also recognizes that a community can plan ahead and put in place operational and zoning standards prior to the entry of an adult facility into the community. The United States Supreme Court held that it is not necessary for a city to conduct its own studies regarding the presence of negative secondary side effects associated with adult businesses. City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002). The Court specifically determined that cities may reasonably rely on the experiences and studies of other cities in concluding that adult businesses create the aforementioned negative secondary side effects. Planning Commission Meeting March 7, 2011 Page 4 of 11 The supporting materials referenced in this staff report, as well as input from Community Development Department staff, the City Attorney's Office, and Sheriff's Department contributed to crafting the recommended operational requirements found in the proposed regulations which are a constitutional, narrowly tailored means of controlling potential secondary effects of adult businesses. On file at the City Clerk's office is the set of the exhibits in support of the proposed regulations. Included among the exhibits are the cases referred to in the reports, findings and draft ordinance, the studies of other cities relating to the secondary effects of adult uses, and other supporting documentation. Proposed Regulations - Overview There are two generally accepted approaches to regulating the location of adult businesses — (1) the "dispersal" method; and (2) the "concentration" method. With the dispersal method adult uses are buffered a set distance from various specified land uses (i.e., parks, schools, residential zones) and from other adult uses. With the concentration method adult uses are all located in one area such as what is known as the "combat zone" in Boston. Planning Division staff is recommending the dispersal method for adult entertainment, which is consistent with existing City adult business regulations. The purpose of the proposed regulations is to provide for locations for adult businesses while preventing their over - concentration or proximity to incompatible uses, subject to design and operating regulations. Overall the proposed regulations would: 1. Specify the M -1 (Light Manufacturing and Industrial) zone as the only zoning district where adult businesses could locate. Adult businesses would be permitted by right subject to a number of locational standards and other development and operational standards in Chapter 5.08, 5.10, and 17.80 of the RMC. 2. Establish a comprehensive set of objective, narrowly defined conditions for establishing the adult entertainment use, regulating the interior, and establishing operating provisions. The standards that apply to an adult business must be "narrow, objective, and definite" per Government Code 65850.4. No Conditional Use Permit would be necessary as such has been found to be constitutionally impermissible in the First Amendment legal arena. Rather, the offered provisions are reasonable time, place, and manner regulations which serve to reduce and /or preclude the negative secondary effects from adult businesses. The proposed regulations allow permit issuance by the Chief of Police, following a joint investigation by the Community Development Department, Sheriff's Department, and business licensing staff to verify all narrow, objective, specific application, personal eligibility, location, development/design, and operations standards are met. Using objective standards as criteria for approval of an adult oriented business without a Conditional Use Permit is also consistent with other jurisdictions including the cities of Alhambra, Pleasanton, Walnut Creek, Fremont, and Milpitas. Planning Commission Meeting March 7, 2011 Page 5 of 11 Finally, the regulations are comprehensive. Development and operational standards, which are "land use" related and /or serve to preclude secondary effects and are reasonable time, place, and manner restrictions including: • Limiting sexual signage to the interior of the premises; • Requiring sound insulation to mitigate audibility of noise from the business outside the business premises; • Requiring keeping doorways and windows closed /covered so adult performances are not visible outside the business; • Minimum exterior lighting levels of 1.5 foot candle; • Requirements to conform to parking standards; • Prohibiting solid fencing between the use and street to preserve passive surveillance; • Limiting hours of operation from 10:00 a.m. to 2:00 a.m. any day; • Requiring security guards and security systems; • Prohibiting amplified sound from exiting the building; and • Requiring adult business performers to obtain an Adult Business Performers business license. Summary of Regulations A summary of what the proposed adult entertainment regulations would accomplish is below. The ordinance would: • Define the various types of adult businesses. The definitions rely on existing definitions in RMC Chapter 17.80. The definitions have been moved to Chapter 5.08 of the RMC. • Combine the three current approvals required (Adult Entertainment License, Adult- Oriented Business Permit, and Business License) into one approval (Adult Business Permit) that would be a ministerial approval by the Chief of Police instead of a discretionary permit by the City Council. Planning Commission Meeting March 7, 2011 Page 6 of 11 • Permit adult businesses in the M -1 zoning district only. Prohibit establishment of an adult business within 1,000 feet of another adult business or of a specified incompatible land use. The proposed list of specified incompatible land uses includes residential uses, churches, schools /day care centers, parks, libraries, alcohol sales, and massage establishments. • Establish requirements for an application. Submittal requirements include business description, site and floor plans, lighting and traffic studies, and documentation of conformance to specified development and operations regulations. Additionally, there would be specific criteria for granting or denying a permit within time limits for action. • Establish development and operational regulations which include minimum interior and exterior lighting levels, security and safety program specifications including security guards, prohibition of alcohol on the premises, and maximum hours of operation (10:00 a.m. to 2:00 a.m.). Additionally the regulations include specifications for interior layout; an occupied manager station from which all patron areas are viewable; and patron - performer seperation requirements. • Set forth regulations and procedures for appeal, revocation, and judicial review including provisions for Planning Commission revocation for cause and City council appeal. Comparison to existing Adult Entertainment Regulations As indicated above, the City currently has adult business regulations in Chapter 5.08 and 17.80 of the RMC. In order to better understand the changes that are proposed, the following key changes are summarized below. Current Requirement Proposed Requirement City Council must approve Adult Chief of Police must approve Adult Entertainment License. Business License, with appeal rights to City Manager only. City Council must approve Adult- This is now part of Adult Business License Oriented Business Permit. issued by Chief of Police. Standard Business License required. This is now part of Adult Business License issued by Chief of Police. Hours of Operation: 6:00 am to 2:00 a.m. Hours of Operation: 10:00 am to 2:00 a.m. No on -site manager required. On -site manager required. Applicant disqualifying conduct: 4 year Applicant disqualifying conduct: 3 year limitation. limitation. No Adult Business Performers license Adult Business Performers must get requirements, separate business license from that of the establishment. Approval by Chief of Police, Planning Commission Meeting March 7, 2011 Page 7 of 11 Current Requirement Proposed Requirement with appeal rights to City Manager. Allowed in C -3 (Medium Commercial) Allowed in M -1 (Light Manufacturing and zone with Adult- Oriented Business Industrial) zone with Adult Business Permit. License. 1,000 foot separation required from 1,000 foot separation required from another another adult- oriented business or adult business, school, child day care, school. residential zone or use within the City, parks, playgrounds, City facilities, libraries, churches, alcohol sales establishment, and massage establishments. Adult booths and individual viewing Adult booths and individual viewing areas areas are permitted are prohibited No physical contact allowed between No contact allowed between performers performers and patrons. and patrons. Lap dancing specifically prohibited. Reasonable venues for operating A key land use consideration is establishing appropriate buffers from specified land uses such as residences, churches, parks, and day care centers. As documented in the findings in Draft Ordinance No. 903, it is appropriate to establish a minimum separation distance from specified land uses. The City of Rosemead's existing minimum separation standard for adult businesses in Section 17.80.060 of the RMC is 1,000 feet. This minimum distance of 1,000 feet is also supported in case law. The 1,000 feet would be measured between the property line of the site containing the specified land use and the property line of the adult oriented business. This way of measurement is consistent with established adult business regulations from other jurisdictions. Selection of M -1 (Light Manufacturing and Industrial) Zoning District The secondary effects of adult entertainment uses would be least intrusive and negatively impacting on residential areas if located in the M -1 zone. There are less residential pedestrians in and around the M -1 zone than residential areas where children may walk or ride bikes and unintentionally be exposed to negative secondary effects such as criminal activity or negative behavioral role models. There is also less population density in general in the M -1 zone which could be negatively affected by crime. The M -1 zone provides both insulation from residential areas and a large pool of land area, which, as the land calculations below show, provides for an adequate number of sites, available land, and existing building square footage to locate adult businesses. The attached map (Exhibit "D ") shows the M -1 zoned land in the City with a 1,000 foot "buffer" around each property containing one of the above - described specified sensitive land uses. The map also shows the area zoned M -1 remaining (in black) after applying Planning Commission Meeting March 7, 2011 Paoe 8 of 11 the 1,000 -foot "buffer." The total net acreage zoned M -1 (after subtracting the area of roads and railroad right -of -way) is approximately 11.7 acres. This acreage is in two distinct areas of the City. One area is at the northeast corner of the City on Temple City Boulevard. The other area is on River Street south of Garvey Avenue near the central eastern edge of the City. This 11.7± acres includes approximately 20 parcels of land with 12 distinct owners, containing approximately 201,000 square feet of existing building space which would be potentially available for adult businesses if the location criteria were applied today. It would be possible for one adult business to locate in each of the two identified areas and meet all the proposed locational standards contained in Section 17.80.020 of the RMC. Of note, there is no "mathematical formula" or set "litmus test" established by the courts to determine the number of sites that must be available for adult uses. The Ninth Circuit in Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993) set out established criteria for determining whether sites, including industrial sites, are actually available. The " Topanga" criteria include: Is it reasonable "to believe that [the site] would ever become available to any commercial enterprise ?" If the sites are in industrial zones, are they reasonably accessible to the general public; have proper infrastructure such as sidewalks, roads and lighting; and can serve a generic commercial purpose such as retail or places of assembly. The use of the M -1 zone provides adequate sites for adult businesses (approximately 20 parcels, and 201,000 square feet of existing building area) and is improved with infrastructure. Sites in the M -1 Zone are compatible with and reasonably suited to and adaptable to commercial development. It should also be noted that the City is not responsible for securing property, as the courts have held that adult oriented businesses are responsible for finding their own property in the real estate market. OTHER REGULATIONS Other aspects of the adult business regulations are described below for the Planning Commission's information and which, unlike the location standards, are generally not land use issues. As demonstrated by the studies from other cities, locational criteria alone do not adequately protect communities from the adverse secondary side effects of adult businesses. In addition, permit, licensing, development, and operational regulations are Planning Commission Meeting March 7, 2011 Paoe 9 of 11 necessitated. Such regulations will help ensure that an adult business does not violate criminal laws, such as those that prohibit prostitution, drug sales, the employment of minors as adult performers, or building or fire code requirements. Care must be taken in drafting the regulations. Permit and licensing requirements for free speech activities can be viewed as a "prior restraint" on speech which is generally not allowed. For example the proposed regulations must provide for the City to make the decision on the permit in a timely manner. Additionally an applicant must have the opportunity for prompt judicial review, for which the draft regulations provide. Permit Requirement The ordinance establishes a permit requirement for the owners and operators of an adult business. Applications for a permit can be denied under various circumstances, for example if the business does not satisfy the location requirements, or if an operator has violated specified laws such as an adult business ordinance of another city or committed prostitution related offenses. Background checks /licensing would be required at initial application, as well as on an ongoing basis. Additionally ongoing compliance with the design and operations regulations would be required. In addition to background information, application requirements include submittal of site and floor plans, photometric studies, and traffic studies as needed to verify conformance with development and operations regulations summarized below. Development and Operations Regulations The proposed ordinance also proposes comprehensive design and operations standards to mitigate and avoid the negative secondary impacts associated with adult businesses. For example, the visibility of the interior from the exterior of the building is prohibited; minimum illumination levels are required in the interior (5 foot candles for theaters and cabarets, except 1.25 foot candles during a performance) and exterior (1.5 foot candle in all parking and pedestrian areas); doors and windows will be required to remain closed; no amplified sound is permitted to exit the building; all interior areas accessible to patrons must be unenclosed and visible at all times from a staffed manager /monitor station. Hours of operation would be limited to 10 a.m. to 2:00 a.m. Additionally, a security program requiring interior and exterior security guards, and exterior video monitoring would be required. To address negative secondary effects associated with adult entertainment and to avoid problems such as prostitution, pandering, and drug dealing the operational regulations seek to reduce contact between performers and patrons, for example requiring that the performance stage be at least 18 inches high and separated from patrons by at least 6 feet with a railing or other barrier; that there be separate entries for patrons and performers; that there be separate restrooms for male patrons and female employees Planning Commission Meeting March 7, 2011 Page 10 of 11 (and female patrons and male employees); that clothing must be worn in the premises except for performers while performing; and that direct tipping or contact/touching between patrons and performers is prohibited. Adult Business License Fees The proposed Adult Business Ordinance includes several types of adult businesses that are not currently included in the City's Business License Fee Resolution (Resolution 2010 -46) adopted on June 22, 2010. Staff will be recommending that the City Council adopt a revised fee resolution to create new adult business license fees for an Adult Model Studio ($1,752 for a new license and $1,593 for renewal) and Adult Performer ($150 for new license and $100 for renewal). The proposed fee for the Adult Model Studio is based on the LA County fee for the same use and a survey was done of several cities to determine the appropriate fee for the Adult Performer business license since the LA County does not have a fee for such use. Conclusion The proposed Ordinance No. 903 provides a revised set of adult business regulations that insures consistency with the General Plan. The Ordinance also refines and updates the appropriate zoning districts and locations for potential adult businesses and enhances the permitting and operational standards for adult businesses, and establishes a licensing 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, and; (2) protect the quality of life and neighborhoods in the City, the City's retail and commercial trade, local property values, and minimize the potential for nuisances related to the operation of adult businesses, while (3) recognizing that some of the expressive activity associated with certain aspects of adult businesses is constitutionally protected. MUNICIPAL CODE REQUIREMENTS Chapter 17.116 of the Rosemead Municipal Code sets forth the procedures and requirements for zone changes and amendments. A municipal code amendment may be permitted whenever the public necessity, convenience, general welfare or good zoning practice justifies such action. The revised adult business regulations are consistent with General Plan Land Use Policy 1.2, to provide buffering between residential and non - residential uses to mitigate potential land uses conflicts. The revised adult business regulations will help with the Planning Commission Meeting March 7, 2011 Page 11 of 11 revitalization of Garvey Avenue (Land Use Policy 5.1), the San Gabriel Boulevard corridor (Land Use Policy 5.2), and the Central Business District (Land Use Policy 5.3), and other commercially zoned areas by prohibiting adult businesses in commercial zones. The revised adult business regulations include provisions designed to protect the privacy of adjacent residential properties and the quality of establish neighborhoods, as required by Land Use Policy 1.5, by establishing minimum locational siting requirements between adult businesses and residential uses, schools, parks, playgrounds and other sensitive land uses. PUBLIC NOTICE PROCESS This item has been noticed through the required public posting requirements of the regular agenda notification process for Municipal Code Amendments, pursuant to Section 17.116.020 of the Rosemead Municipal Code, which includes publication in the San Gabriel Valley Tribune and posting of the notice at six (6) public locations in the City. Prepared by: 7 �9 ' Paul Garry Senior Planner Submitted by: Sn Wong ill Community Development Director EXHIBITS: A. Planning Commission Resolution No. 11 -02 B Draft Ordinance No. 903 C. Urgency Ordinance No. 878 (Moratorium) D. Location Standards Analysis Map PC RESOLUTION 11- 02 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF ROSEMEAD, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA RECOMMENDING CITY COUNCIL APPROVE MUNICIPAL CODE AMENDMENT 10 -04 CONSISTING OF AMENDMENTS TO THE ROSEMEAD MUNICIPAL CODE FOR THE PURPOSE OF REVISING ADULT BUSINESS REGULATIONS WHEREAS, the City of Rosemead has adopted the General Plan and Zoning Ordinance, and map, including specific development standards to control development; and WHEREAS, Section 17.116.010 of the Rosemead Municipal Code authorize the Planning Commission to consider and recommend proposed municipal code amendments to the City Council; and WHEREAS, Municipal Code Amendment 10 -04 is a City initiated amendment to revise Title 5 (Business Licenses and Regulations) and Title 17 (Zoning) of the Rosemead Municipal Code. The purpose of the amendments are to revise the regulations for adult businesses in order to prevent their concentration or proximity to incompatible uses and avoid negative secondary effects associated with adult business uses. The proposed adult business regulations address licensing /permitting provisions, operating standards, and zoning limitations for these adult businesses; and WHEREAS, on February 25, 2011 notices were posted in six (6) public locations and a notice was published in the San Gabriel Valley Tribune specifying the public comment period and the time and place for a public hearing pursuant to California Government Code Section 65091(a)(3); and WHEREAS, on March 7, 2011, the Planning Commission held a duly noticed and advertised public hearing to receive oral and written testimony relative to Municipal Code Amendment 10 -04 (MCA 10 -04); and WHEREAS, the Rosemead Planning Commission has sufficiently considered all testimony presented to them in order to make the following determination; NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Rosemead as follows: SECTION 1. The Planning Commission finds that these regulations are enacted in order to mitigate the threat posed to the public peace, health, or safety by adult businesses. In this regard, the findings set forth in Section 2 of this Resolution are incorporated herein by reference. This Resolution provides for the amendment of existing regulations applicable to adult businesses and provides for zoning regulations which are specifically applicable to adult 1 EXHIBIT A business uses. Such uses are already allowed under the City's existing zoning regulations. Therefore, it can be seen with certainty that there is no possibility that these amendments may have a significant adverse effect on the environment and therefore the adoption of these amendments are exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines. SECTION 2 . Findings. The Planning Commission of the City of Rosemead hereby finds and declares that: (a) It is necessary and appropriate to amend Chapters 5.08, 17.44, 17.56, and 17.80 of the Rosemead Municipal Code and add new Chapter 5.10 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 licensing 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 potentially 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; and (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; while (3) recognizing that some of the expressive activity associated with certain aspects of adult businesses is constitutionally protected. (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. 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 may locate or surrounding areas. The need for such special regulations is based upon the nationally and judicially recognized evidence 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 places of religious worship, 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. In addition, 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. (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. CityofDallas, 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 F3d 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. Cityof Simi Valley, 216 F.3d 807 (9th Cir. 2000), cart. denied 531 U.S. 1104 (2001); Lim v. City of Long Beach, 217 R3d 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), cart. 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 W), 199 F.3d 1111 (9th Cir. 2000); Baby Tam & Co., Inc. v. City ofLas Vegas ( "Baby Tam Ill'), 247 F.3d 1003 (9th Cir. 2001); 4805 Convoy, Inc. v. City of San Diego, 183 F3d 1108 (9th Cir. 1999); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cent. 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 3 EXHIBIT A cases, including but not limited to: 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.AppAth 1 (1998); City of National City v. Wiener, 3 CalAth 832 (1993), cent. 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), cent. 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), cent, 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 locational 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 locational 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. 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. 4 EXHIBIT A 5. As a result of the above, and the continuing public health threat associated with 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 Rosemead 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 County of Los Angeles "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 County also reports a slight increase in AIDS deaths in 2001. (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 Los Angeles Department of Health Services "Sexually Transmitted Disease Morbidity Report (2000- 2004)," ( "County STD Report"). The County STD Report indicates that the between 2000 and 2004 the number of reported cases in Los Angeles County of: (1) syphilis increased from 1,918 to 2,016; (2) gonorrhea increased from 7,199 to 9,696; and (3) Chlamydia increased from 30,546 to 38,464. 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 adult live entertainment, a number of courts have upheld prohibitions on totally nude performers, distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and precluded direct exchange of monies between performers and patrons at adult businesses that provide live entertainment, including, but not limited to: 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); Gammoh v. City of La Habra, 395 F.3d 1114 (9 Cir. 2005); Tily B. v. City of Newport Beach (1999) 69 Cal.AppAth 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. Whiffield County, 463 S.E.2d 116 (Ga. 1995); and Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995). 5 EXHIBIT A (k) The City Council believes that prohibiting totally nude performers and 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. A. The City Council recognizes and relies on the findings setforth 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. B. With respect to booths, these findings include the following: The inside walls of the booth are typically covered with graffiti and messages, usually of a sexual nature and consisting of telephone numbers, names, requests and offers for sex acts, anatomical descriptions, and sketches. Some booths also contain a chart used as an appointment schedule that is utilized to schedule appointments for sex acts that take place in that particular booth. In some instances, this arrangement has been used for the solicitation of prostitutes. Many of these booths are equipped with a hole in the side wall between the booths to allow patrons to engage in anonymous sex including both oral and anal sex acts. Inside the booths, the floors and walls are often wet and sticky with liquid or viscous substances, including semen, urine, feces, used prophylactics, gels, saliva, or alcoholic beverages. The City concludes, based in part on the description of the illicit sexual activity as noted within the Attorney General's Report, that the presence of enclosed booths and viewing areas is likely to lead to the above described secondary effects. 6 EXHIBIT A C. 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 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 Rosemead. D. 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 Ellwest 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: Operators of and performers at adult businesses complywith 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 licenses and performer licenses are handled fairly and expeditiously; and 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 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. The County Sheriff 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), cent. 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 16 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 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 ofHaflie, 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. 8 EXHIBIT A (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 (9 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. (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 . The Planning Commission HEREBY FINDS AND DETERMINES that Municipal Code Amendment 10 -04 is in the best interest of the public necessity and general welfare, and good city planning practice dictates and supports the proposed amendment, in that the change to the Rosemead Municipal Code will provide a superior level of planning and protection to the quality and character of the City. SECTION 4 . The Planning Commission FINDS AND DETERMINES that Municipal Code Amendment 10 -04 is consistent with the Rosemead General Plan as follows: FINDING: The revised adult business regulations are consistent with General Plan Land Use Policy 1.2, to provide buffering between residential and non - residential uses to mitigate potential land use conflicts. The revised adult business regulations will help with the revitalization of Garvey Avenue (Land Use Policy 5.1), the San Gabriel Boulevard corridor (Land Use Policy 5.2), and the Central Business District (Land Use Policy 5.3) and other commercially zoned areas by prohibiting adult businesses in commercial zones. 9 EXHIBIT A The revised adult business regulations include provisions designed to protect the privacy of adjacent residential properties and the quality of establish neighborhoods, as required by Land Use Policy 1.5, by establishing minimum locational siting requirements between adult businesses and residential uses, schools, parks, and playgrounds SECTION 5. The Planning Commission does HEREBY RECOMMEND that Chapter 5.08 (Adult Businesses) of the Rosemead Municipal Code be amended to read as follows: Chapter 5.08 ADULT BUSINESSES Sections: 5.08.010 Intent. 5.08.020 Definitions. 5.08.030 License required. 5.08.040 Application submittals. 5.08.050 Review of application. 5.08.060 Development and operational standards. 5.08.070 Prohibited conduct at adult businesses. 5.08.080 License requirements; effect of noncompliance. 5.08.090 License duration. 5.08.100 License renewal. 5.08.110 License transferability. 5.08.120 Enforcement and revocation. 5.08.130 Appeals. 5.08.140 Reapplication after denial or revocation. 5.08.150 Violations. 5.08.160 Discontinued use. 5.08.170 Regulations nonexclusive. 5.08.010 Intent. A. The intent of this chapter is to regulate adult businesses that, 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. B. It is neither the intent nor effect of this chapter to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor effect of this chapter 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. 10 EXHIBIT A C. Nothing in this chapter 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, obscene or harmful matter, or the exhibition or public display thereof. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. "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 booth or Individual viewing area" means a partitioned or partially enclosed portion of an adult business used for any of the following purposes: A. 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; B. Where adult arcade devices are located. "Adult business" means any business establishment or concern that, as a regular and substantial course of conduct, performs or operates as an adult arcade, adult cabaret, adult model studio, adult store or adult theater, or any combination thereof. It also means any business establishment or concern that, 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 that, 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 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 exposes to public view, with opaque covering (e.g., pasties and g- string), 11 EXHIBIT A specified anatomical areas; or (2) the performance or physical human body activity depicts, describes, or relates to specified sexual activities, even if the specified anatomical areas are covered. "Adult model studio" means a business establishment that 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 that 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 that, 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 that, as a regular and substantial course of conduct, presents adult live entertainment, or motion pictures, videos, digital video disks, slide photographs, or other pictures or electronically generated visual reproductions, distinguished or characterized by the emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. "Applicant" means all owners of a proposed adult business applying for an adult business license under this chapter. "Chief of Police" means the Los Angeles County Sheriff or the Sheriffs designee. "Code enforcement officer" means a person authorized to enforce certain provisions of this chapter. "Establishment of an adult business" means any of the following: A. The opening or commencement of any adult business as a new business; B. The conversion of an existing business, whether or not an adult business, to any adult business; C. The addition of any of the adult businesses defined herein to any other existing adult business; or D. 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. 12 EXHIBIT A "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, overseeing, 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, oversees, 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 chapter, each officer and director of a corporation and each stockholder holding more than 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. "Regular and substantial course of conduct" and "regular and substantial portion" means any adult - oriented business where one or more of the following conditions exist: A. The area(s) devoted to the display of sexually oriented material or merchandise exceeds twenty -five (25) percent of the total display area of the business; or B. The business presents any type of live entertainment characterized by an emphasis on specified sexual activity or specified anatomical parts, or performers, models or employees appearing in public dressed only in lingerie, on any four or more separate days within any twelve (12) month period; or C. At least twenty -five (25) percent of the annual gross receipts, as defined by Section 993(f) of the Internal Revenue Code, of the business are derived from the sale, trade, rental, display or presentation of services, products, sexually oriented material or merchandise, or entertainment which are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. This section shall not apply to any video store or bookstore which physically separates sexually oriented material from non - sexually oriented material and does not advertise such sexually oriented material. "Religious institution" means a structure which is used primarily for religious worship and related religious activities. 13 EXHIBIT A "School" means any child care facility, day care facility 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 a nursery school, kindergarten, elementary school, junior high school, senior high school 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. "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 that, for purposes of sexual arousal, provides depictions 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 designed or marketed primarily for the stimulation of human genital organs or sadomasochistic activity, or characterized by an emphasis on matter depicting, describing or relating to specific sexual activities or specified anatomical areas. "Specified anatomical areas" means A. 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 B. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. "Specified sexual activities" means A. Fondling or touching of nude human genitals, pubic region, buttocks or female breast; B. Human sex acts, actual or simulated, including intercourse, oral copulation or sodomy; C. Acts of human masturbation, sexual stimulation or arousal, actual or simulated; D. Human genitals in a state of sexual stimulation or arousal; E. Use of human or animal ejaculation; F. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, bondage or restraints; or 14 EXHIBIT A G. Excretory functions as part of, or in connection with, any of the activities listed in division (A) through (F) of this definition. 5.08.030 License required. A. No person may establish or operate an adult business within the city without first obtaining, and continuing to maintain in full force and effect, an adult business license. The issuance of an adult business license shall satisfy the requirement of this code that every applicable business obtain a business license. B. Every adult business license is subject to the development and operational standards of this chapter, and the regulations of the zoning district in which the business is located. 5.08.040 Application submittals. A. Application. Any person desiring to obtain an adult business license must submit an application to the City Manager or his or her designee on the form provided by the city. The application must list all owners of the proposed adult business, who are collectively referred to as "the applicant'. The application must also list each designated operator and on -site manager if such persons are not owners. The application must contain the following information regarding the owners, operators and on -site managers, as applicable, and the following items: 1. Name and address. 2. The previous residential addresses of all individuals, if any, for a period of five years immediately prior to the date of filing the application, and the dates of residence at each. 3. Written proof that all individuals are at least 18 years of age. 4. The history of the applicant as to the operation of any adult business or similar business or occupation within five years of the filing of the application. Such information must include a statement as to whether or not each such person, in operating an adult business under a license, has had such license or license revoked or suspended and the reasons therefor. 5. All criminal convictions or offenses described in Section 5.08.060(b)(11); and whether any individual is required to register under the provisions of Cal. Penal Code Section 290 or of the Cal. Health & Safety Code Section 11590. 6. Authorization for the city, its agents and employees to seek information and conduct an investigation into the truth of the statements set forth in the application and the qualifications of the individuals. 7. The height, weight, and color of eyes and hair of each individual. 15 EXHIBIT A 8. Fingerprints and two prints of a recent passport-size photograph of each individual. 9. Business, occupation or employment history of each individual for the five years immediately preceding the date of the application. 10.A non - refundable deposit or fee as set forth by city resolution. 11.A narrative description of the proposed business, explaining how such business complies or will comply with the applicable development and operational standards specified in Section 5.08.060. 12. A site plan designating the building or unit proposed for the adult business, and a dimensional interior floor plan depicting how the business complies or will comply with the applicable development and operational standards specified in Section 5.08.060. The site plan and interior floor plan need not be professionally prepared, but must be drawn to a designated scale or to an accuracy of plus or minus six inches. 13.A lighting plan for all outdoor areas including parking areas. 14. 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. 15. The fictitious name, if any, of the adult business, together with documentary proof of registration of the fictitious name. 16. 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, or their legally authorized representative, as applicable, must consent to the filing of the application by signing and dating the application. 17.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. a. 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. 18. Such additional information as the Chief of Police may reasonably deem necessary. B. Determination of completeness. 16 EXHIBIT A The Chief of Police will determine whether the application contains all the information and items required by the provisions of this chapter. 2. If it is determined that the application is not complete, the applicant will be notified in writing within five business days of the date of receipt of the application that the application is not complete and the reasons for such determination, including any additional information necessary to render the application complete. a. The applicant will have 30 calendar days to submit additional information to render the application complete. b. Failure to do so within the 30 -day period will render the application void. 3. Within five business days following the receipt of an amended application or supplemental information, the Chief of Police will again determine whether the application is complete in accordance with the procedures set forth in this division. a. Evaluation and notification will occur as provided above until such time as the application is found to be complete or the application is withdrawn. b. The applicant will be notified within five days of the date of the application is found to be complete (hereafter "application date "). 4. All notices required by this chapter 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. 5.08.050 Review of application. A. The Chief of Police will promptly cause the investigation of the application and, within 30 days of the application date, either issue the license or send by certified mail a written statement to the applicant, setting forth the reasons for denial of the license. If the Chief of Police has not issued a decision on the application within 30 days of the application date, the application will be deemed approved, subject to an appeal under Section 5.08.130. B. The Chief of Police may deny a license for any of the following reasons: 1. An applicant has made one or more material misstatements in the application; 2. That the adult business, if licensed, will not comply with all applicable laws including but not limited to, the building, development, fire, health, housing, and zoning codes of the City; 17 EXHIBIT A 3. An applicant or any designated operator or on -site manager has pled guilty, nolo contendere or been convicted within three years of the application date of an offense specified in Section 5.08.060(b)(10); 4. An applicant or any operator has had a license or license for an adult business denied, revoked or suspended for cause by any city, county or state within three years of the application date; 5. An applicant is under 18 years of age; 6. The applicant failed to pay the filing fee required by this chapter. C. If the license is denied, the Chief of Police 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 5.08.130. D. The decision of the Chief of Police to issue or deny a license will be final unless an appeal is timely filed under Section 5.08.130. 5.08.060 Development and operational standards. A. Development standards. 1. Zoning compliance. a. The building in which an adult business is located must comply with all setbacks, parking, signage and other applicable requirements of the zoning district. However, if the adult- oriented business is the sole use on a lot, no landscaping shall exceed thirty (30) inches in height, except trees with foliage not less than six feet above the ground notwithstanding any landscaping requirements to the contrary. b. The adult- oriented business shall not conduct or 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. c. The adult- oriented business shall not conduct any massage, acupuncture, tattooing, acupressure, fortunetelling or escort services on the premise nor shall any such business be conducted from the same premise as the adult- oriented business. d. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times. 18 EXHIBIT A e. 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 business 2. Exterior lighting. a. All exterior areas, including parking lots, of the adult business must be illuminated at a minimum of 1.50 footcandle, maintained and evenly distributed at ground level with appropriate devices to screen, deflect or diffuse the lighting in such manner as to prevent glare or reflected light from creating adverse impacts on adjoining and nearby public and private properties. b. Inoperable or broken lights must be replaced within 24 hours. 3. 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 other building or other separate unit within the same building. 4. No minors. a. 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. b. Such notice must be constructed and posted to the satisfaction of the Chief of Police. c. No person under the age of 18 years may be permitted within the premises at any time. 5. Open indoor areas. a. All indoor areas, within which patrons are permitted, except restrooms, must be open to view at all times. b. Adult booths and individual viewing areas are prohibited. 6. Restrooms. a. Separate restroom facilities must be provided for male patrons and employees, and female patrons and employees. b. Male patrons and employees are prohibited from using any restroom for females, and female patrons and employees are prohibited from using any 19 EXHIBIT A restroom for males, except to carry out duties of repair, maintenance and cleaning of the restroom facilities. c. The restrooms must be free from any sexually oriented material. d. Restrooms may not contain television monitors or other motion picture or video projection, recording or reproduction equipment. e. This division does not apply to an adult business that deals exclusively with the sale or rental of sexually oriented material that is not used or viewed on the premises, such as an adult store or adult video store, and does not provide restroom facilities to its patrons or the general public. 7. Residential conversions prohibited. No residential structure may be converted for use as an adult business. 8. Portable structures prohibited. No adult business may be located in any temporary or portable structure. B. Operational standards. 1. Hours. No adult business may operate or be open for business between the hours of 2:00 a.m. to 10:00 a.m. 2. Employment of minors prohibited. No owner or operator of any adult business may employ or permit to be employed any person who is not at least 18 years of age. 3. Presence of minors on premises prohibited. a. No owner or operator of an adult business may allow or permit any person under the age of 18 years to enter, be or remain in any such business. b. Operators must determine the age of persons who enter the premises by posting an employee at the entrance to check the driver's license or other authorized identification of each person entering the premises. 4. Screening of interior of premises and display of sexually oriented materials or adult live entertainment. a. 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, or adult live entertainment, from any public way or from any location outside the building or area of such establishment. b. This provision applies to any display, decoration, sign, show window or other opening. c. No exterior door or window on the premises maybe 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 Chief of Police. 5. Alcoholic beverages prohibited. No alcoholic beverages may be served, consumed or sold on the premises of an adult business. 6. Illumination. All areas of the adult business must be illuminated at a minimum of the following footcandles, minimally maintained and evenly distributed at ground level: Area Footcandles stores and other retail establishments 20 theaters and cabarets 5 (except during performances, at which time lighting must be at least 1.25 footcandles) arcades 10 modeling studios 20 7. Security measures. a. On -site manager required. i. 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 the business is open, and shall be given by the owner or operator the responsibility and duty to address and immediately resolve all violations of law taking place on the premises. ii. No performer may serve as an on -site manager. iii. If the on -site manager is not an owner, then the owners must provide the Chief of Police with the individual background information set forth in divisions (1) to (9) of Section 5.08.040(A) for such on -site manager, and receive approval for each such on -site manager, utilizing the application process under Section 5.08.050, prior to such individual commencing any managerial duties at the premises. b. Security guards required. Adult businesses must employ state - licensed, uniformed security guards in order to maintain the public peace and safety, based upon the following standards: 21 EXHIBIT A Adult businesses featuring adult live entertainment and performers must provide at least one security guard at all times while the business is open. If the occupancy limit of the premises is greaterthan 35 persons, an additional security guard must be on duty. ii. Security guards for other adult businesses maybe required if it is determined by the Chief of Police that their presence is necessary in order to prevent any of the conduct prohibited in this chapter from occurring on the premises. c. Duties and qualifications of security guards. Security guards have a duty to prevent violations of law and enforce compliance by patrons with the requirements of this chapter. ii. 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 under state law. iii. No security guard required under this section may act as a door person, ticket seller, ticket taker, admittance person, performer or on -site manager while acting as a security guard. d. Illumination requirements for off - street parking areas and building entries. All off - street parking areas and building entries serving an adult business featuring adult live entertainment must be illuminated during all hours of operation, with a lighting system designed to provide at least an average maintained, horizontal illumination of 1.50 footcandle of light on the parking surface and walkway. ii. This required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the adult business, for the personal safety of patrons and employees, and to reduce the incidence of vandalism and theft. iii. The lighting must be shown on the required site or plot plan and must be accompanied by a photometric study. iv. The required lighting must remain on for at least 30 minutes after the closing time of the adult business to promote safety for its employees. Security system for off- street parking areas. All off - street parking areas serving an adult business featuring adult live entertainment must have a security system that visually records and retains images of the entire parking area for at least 14 days for the purposes of promoting safety and identifying illegal activity. 22 EXHIBIT A 8. Adult live entertainment; additional operating regulations. The following additional requirements apply to adult businesses providing adult live entertainment: a. No person may perform adult live entertainment for patrons of an adult business except upon a permanently fixed stage, at least 18 inches above the level of the floor, and surrounded by a three - foot -high barrier or by a fixed rail at least 30 inches in height. A distance of at least six feet, measured horizontally, must be maintained between patrons and performers at all times during a performance. ii. No patron may 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 performer is completely separated from the area in which an individual views the performer by a permanent, floor -to- ceiling, solid barrier. No performer may have physical contact with any patron, and no patron may have physical contact with any performer, while the performer is performing on the premises. i. This prohibition does not extend to incidental touching. ii. 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 in size. iii. If necessary, patrons must also be advised of the no touching requirements by employees or independent contractors of the establishment. c. While on or about the premises, all employees and independent contractors of the adult business, including performers, must wear, at a minimum, an opaque covering that covers their specified anatomical areas. If patrons wish to pay or tip performers, payment or tips may be placed in containers placed at least six feet 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. ii. 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 in size. 23 EXHIBIT A e. The adult business must provide dressing rooms for performers, which are separated by gender and exclusively dedicated to the performers' use, and which the performers must use. i. Same gender performers may share a dressing room. ii. Patrons are not permitted in dressing rooms. f. The adult business must provide an entrance /exit to the establishment for performers that is separate from the entrance /exit used by patrons, and the performers must use this entrance /exit at all times. g. 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 -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 that actually results in) preventing any physical contact between patrons and performers. ii. The patrons must remain at least three feet away from the walk aisle. iii. 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. 9. Adult theater; additional operating requirements. The following additional requirements apply to adult theaters. a. 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 so 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, listing 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. 24 EXHIBIT A 10. No owner, operator or on -site manager of any adult business may have pled guilty, nolo contendere or been convicted within the past three 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: Cal. Penal Code Section 243.4, 261, 266a through 266j, inclusive, 267, 314, 315, 316, 318; or Cal. Penal Code Section 647a, b and d; any offense requiring registration under provisions of either Cal. Penal Code Section 290 or Cal. Health & Safety Code Section 11590; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing or giving away of a controlled substance specified in Cal. Health & Safety Code Section 11054, 11055, 11056, 11057 or 11058, as those sections may hereafter be amended. 11. No owner, operator, employee or performer of an adult business may personally solicit, or permit the personal solicitation of, motorists or pedestrians in the vicinity of the adult business. 12. Every adult business must display, at all times during business hours, the license issued pursuant to the provisions of this chapter for such adult business, in a conspicuous place so that the license may be readily seen by all persons entering the adult business. 13. No owner, operator or on -site manager may permit any person on the premises of the adult business to engage in, nor may any performer perform at such premises, a live showing of any of the following: (a) the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, (b) the female breasts with less than a fully opaque covering over any part of the nipple or areola; or (c) covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specific anatomical part required to be covered. 14. No performer may be employed, hired, engaged or otherwise retained by an adult business to participate in or give any live performance without first having a valid adult business performer license issued by the city. 5.08.070 Prohibited conduct at adult businesses A. No person may operate or manage, or cause to be operated or managed, an adult business knowingly, or with reason to know, permitting, suffering, or allowing any employee or independent contractor: 1. To engage in a lap dance with a patron at the business; or 2. To contractor otherwise agree with a patron to engage in a lap dance with a person at the business; or 25 EXHIBIT A 3. To intentionally touch any patron at an adult business while performing adult live entertainment; or 4. To voluntarily be within six feet of any patron while performing adult live entertainment; or 5. To solicit or request any gratuity, pay or any other form of consideration from a patron on the premises of the adult business while performing adult live entertainment. B. No person at any adult business may intentionally touch an employee or independent contractor who is performing adult live entertainment at the adult business. C. No person at any adult business may engage in a lap dance with an employee or independent contractor at the adult business. D. No person may 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 business. No person may 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 business. E. No performer may engage in a performance or solicit a performance between the hours of 2:00 a.m. and 10:00 a.m. F. No employee or independent contractor at an adult business may appear on the premises of the adult business in the nude, seminude, or display or expose specified anatomical areas. 5.08.080 License requirements; effect of noncompliance. The requirements described in Sections 5.08.060 and 5.08.070 are conditions of an adult business license, and the failure to comply with any applicable requirement is grounds for revocation of the license issued pursuant to this chapter. 5.08.090 License duration. An adult business license is valid for a period of one year from the date of issuance. 5.08.100 License renewal. A. An adult business license must be renewed on an annual basis, provided that the owner and the adult business continues to meet all applicable requirements set forth in this chapter. 26 EXHIBIT A B. A request for license renewal must be accompanied by an adult business license application, completed in full detail with current information. 1. The application and appropriate fee must be received by the city at least 45 calendar days prior to the expiration of the existing license. 2. The city will process a request for a license renewal in the same manner as the original application. 5.08.110 License transferability. A. No adult business license may be sold, transferred or assigned by any owner, or by operation of law, to any other person unless and until the transferee obtains an amendment to the license from the Chief of Police stating that the transferee is now the owner. 1. Such an amendment maybe obtained only if the transferee files an application with the City Manager or his or her designee in accordance with Section 5.08.040 (including payment of the applicable application fee), and the Chief of Police determines, in accordance with Section 5.08.050, that the transferee would be entitled to the issuance of the original license. 2. Without such amendment to the license, any other purported sale, transfer or assignment, or attempted sale, transfer or assignment, will be deemed to constitute a voluntary surrender of the license, and thereafter the license will be null and void. B. An adult business license held by a corporation, partnership or limited liability company is subject to the same rules of transferability. C. An adult business license will be valid only for the exact location specified in the license. 5.08.120 Enforcement and revocation. A. Inspections. All law enforcement and code enforcement 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 chapter. B. Grounds for revocation. The Chief of Police may revoke an adult business license when: 1. Any of the applicable requirements of this chapter ceases to be satisfied; or 2. The application is discovered to contain incorrect, false or misleading information; or 27 EXHIBIT A 3. 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 5.08.060(b)(11); or 4. On two or more occasions within a 12 -month period, any operator, employee, agent or contractor of the 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 5.08.060(b)(11); or 5. The owner, operator or any employee, agent or contractor of the owner has knowingly allowed prostitution, or solicitation for prostitution, on the premises; or 6. The owner, 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 7. The adult business has been operated in violation of any of the requirements of this chapter 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 days following the date written notice of such violation is mailed or delivered to the owner or operator; or b. If the violation is of a noncontinuous nature, one or more additional violations of the same provision, or two or more violations of any other of the provisions, of this chapter occur (regardless of whether notice of each individual violation is given to the owner or operator) within any 12 -month period. C. Notice of revocation. Upon determining that grounds for license revocation exist, the Chief of Police will furnish written notice of the proposed revocation to the owner. 2. 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 owner files an appeal under Section 5.08.130. 3. The notice must be delivered both by posting the notice at the location of the adult business, and by sending the same, by certified mail, to the owner as that name and address appears on the license. 5.08.130 Appeals. 28 EXHIBIT A A. Any interested person may appeal a decision of the Chief of Police regarding an application for, or revocation of, an adult business license, by filing a complete notice of appeal with the City Clerk within 10 days from the date notice of such decision is mailed. To be deemed complete, the appeal must: 1. Be in writing, stating the grounds for disagreement with the Chief of Police's stated decision; 2. Include the address to which notice is to be mailed; 3. Be signed under penalty of perjury; and 4. Be accompanied by the filing fee established by City Council resolution. B. If an appeal is timely filed, the City Manager will hear the appeal and the City Clerk will cause to be set a date for the hearing of the appeal not more than 30 days from the date the appeal is received. 1. The hearing will be a de novo hearing on the action which is the subject of the appeal. 2. At the hearing, the appellant will have the right to offer testimonial, documentary and tangible evidence bearing upon the issues. 3. The City Manager will not be bound by the formal rules of evidence. 4. Any hearing under this section may be continued for a reasonable time for the convenience of a parry or a witness. C. The City Manager will issue written findings and a decision within 15 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 Cal. Civ. Proc. Code Section 1094.8. D. The action by the hearing officer will be final unless timely judicial review is sought pursuant to Cal. Civ. Proc. Code Section 1094.8. 5.08.140 Reapplication after denial or revocation. A. Reapplication after denial. 1. An applicant for a license under this chapter, whose application for such license has been denied, may not reapply for a license for a period of two years from the date such notice of denial was deposited in the mail or received by the licensee, whichever occurs first. 29 EXHIBIT A 2. However, a reapplication prior to the termination of two years may be made if accompanied by evidence that the ground or grounds for denial of the application no longer exists. B. Reapplication after revocation. No person may obtain an adult business license for three years from the date any order of license revocation affecting such person has become final. 5.08.150 Violations. A. Any owner, operator, licensee, employee or independent contractor of an adult business violating or permitting the violation of any of the provisions of this chapter will be subject to any and all civil remedies, including license or license revocation. All remedies provided herein are cumulative and not exclusive. B. In addition to the remedies set forth in division (A), any adult business operating in violation of these provisions is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. C. The regulations imposed under this chapter are part of a regulatory licensing process, and any violation of this chapter does not constitute a criminal offense. Notwithstanding any other provision of this code, the city does not impose a criminal penalty for violations of this chapter related to expressive activities. 5.08.160 Discontinued use. Notwithstanding any provision to the contrary in this code, if an adult business is abandoned for a period of six consecutive months, the Chief of Police shall, after public hearing, have the authority to revoke the adult business license. The public hearing shall be noticed in accordance with Government Code Section 65091. 5.08.170 Regulations nonexclusive. The provisions of this chapter 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. SECTION 6. The Planning Commission does HEREBY RECOMMEND that Chapter 5.10 (Adult Business Performers) shall be added to Title 5 of the Rosemead Municipal Code to read as follows: Chapter 5.10 Sections: 30 EXHIBIT A 5.10.010 Purpose. 5.10.020 Definitions. 5.10.030 Adult business performer license required. 5.10.040 Investigation and action on license application. 5.10.050 License revocation. 5.10.060 Appeals. 5.10.070 Display of license identification cards. 5.10.080 License non - transferable. 5.10.090 Violations. 5.10.010 Purpose. A. The purpose of this chapter to provide for the licensing of adult business performers in order to promote the health, safety, and general welfare of the city. B. The intent of the adult business performer licensing provisions are: (1) to protect minors by requiring that all performers be over the age of 18 years; (2) to assure the correct identification of persons performing in adult businesses; (3) to enable the city to deploy law enforcement resources effectively; and (4) to 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. C. 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. D. Nothing in these regulations is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use that 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. 5.10.020 Definitions. The definitions contained in Chapter 5.08 of this code also apply to this chapter, with the following additions: "Licensee" means a person who is issued an adult business performer license under this chapter. 5.10.030 Adult business performer license required. 31 EXHIBIT A A. No performer may be employed, hired, engaged, or otherwise retained by an adult business to participate in, or give any performance of, adult live entertainment without first having a valid adult business performer license issued by the city. B. The Chief of Police is responsible for the processing, investigation, and issuance of adult business performer licenses in accordance with this chapter. C. License applicants must file a license application or renewal application with the City Manager or his or her designee on a form provided by the city. At minimum, this application form must 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, 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 license applicant is a least 18 years of age; 9. The license applicant's fingerprints on a form provided by the city, and two passport- size photographs clearly showing the applicant's face. a. Any fees for the photographs and fingerprints will be paid by the applicant. b. Fingerprints and photographs must be taken within six 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 within five years since the date of conviction or the date of release from confinement to the date of application, whichever is the later date. 11. If the application is made for the purpose of renewing a license, the applicant must attach a copy of the license to be renewed. 32 EXHIBIT A D. The information provided above in division (C) that is personal, private, confidential, or the disclosure of which could expose the applicant to the risk of harm, including but not limited to, the applicant's residence address, telephone number, date of birth and age, driver's license and Social Security number, will not be disclosed, provided such nondisclosure is in accordance with the California Public Records Act. E. The completed application must be accompanied by a non - refundable application fee and annual license fee. The amount of such fees will be as set forth in the schedule of fees established by City Council resolution. F. The Chief of Police will determine whether the application is complete within two business days. If the Chief of Police determines that the application is incomplete, the Chief of Police must immediately inform the applicant of such fact, and the reasons therefor, including any additional information necessary to render the application complete. 2. Upon receipt of a completed adult business performer application, the Chief of Police will, within two business days, issue a temporary adult business performer license that will automatically expire 30 business days from the date of issuance, unless extended as provided in Section 5.10.040(D). This temporary adult business performer license authorizes a performer to commence performance at an adult business that possesses a valid adult business license authorized to provide adult live entertainment. G. The fact that a license applicant possesses other types of state or city permits or licenses does not exempt the license applicant from the requirement of obtaining an adult business performer license. 5.10.040 Investigation and action on license application. A. Upon submission of a completed application and issuance of a temporary adult business performer license, the Chief of Police will promptly cause the investigation of the information contained in the application to determine whether the applicant should be issued an adult business performer license. B. The Chief of Police's decision to grant or deny the adult business performer license must be made within 30 business days from the date the temporary license was issued. If the application is denied, the Chief of Police 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 5.10.060. 2. If the application is granted, the Chief of Police will attach the adult business performer license to the notice. 33 EXHIBIT A 3. The decision will be mailed or personally delivered to the applicant at the address provided in the application. C. The Chief of Police may 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 license. 2. The applicant is under 18 years of age. 3. The adult business performer license 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 license. 4. The occurrence of any of the events set forth in Section 5.10.030(c)(10). D. If the Chief of Police fails to render a decision on the license within the time frame established by this section, the application will be deemed approved, subject to an appeal under Section 5.10.060. E. Each adult business performer license, other than the temporary adult business performer license described in Section 5.10.020(F), will expire one year from the date of issuance, and may be renewed only by filing with the Chief of Police a written request for renewal, accompanied by the annual license fee and a copy of the license to be renewed, at least 30 days prior to the expiration of the license. 1. If the application conforms to the previously approved application and there has been no change with respect to the licensee being convicted of any crime classified by this or any other state as a sex - related offense, and no evidence that the licensee has failed to comply with any of the operating standards of Chapter 5.08 applicable to a performer or the requirements of this chapter, the Chief of Police will renew the license for one year. 2. An application for renewal will be acted upon in the same manner as the application for the original license. 3. If the Chief of Police denies renewal of the application, that decision is also appealable under Section 5.10.060. 5.10.050 License revocation. A. A license may be revoked, based on any of the following causes arising from the acts or omissions of the licensee: 1. The licensee has made a false, misleading or fraudulent statement of material fact in the application for a performer license. 2. The licensee has pled guilty, nolo contendere or been convicted of an offense as set forth in Section 5.10.030(c)(10). 3. The licensee has failed to comply with any of the operating standards of Chapter 5.08 applicable to a performer or the requirements of this chapter. B. In determining that grounds for license revocation or suspension exist, the Chief of Police will furnish written notice of the proposed action to the licensee. 1. Such notice will set forth the time and place of a hearing before the Chief of Police, the grounds, including the factual matters, in support of such proposed action, and the pertinent code sections. 2. The notice will be mailed, postage prepaid, to the last known address of the licensee, or personally delivered to the licensee, at least ten days prior to the hearing date. C. At the hearing, the licensee will have the right to offer testimonial, documentary and tangible evidence bearing upon the issues. 1. The Chief of Police will not be bound by the formal rules of evidence. 2. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness at the request of the licensee. D. After the hearing, the Chief of Police will either sustain or overrule the decision of the Chief of Police to issue the initial adult business performer license and render a written decision within two business days of the hearing. 1. The decision will be sent by certified mail to the applicant or licensee. 2. The decision of the Chief of Police must include reference to the right to prompt judicial review under Cal. Civ. Proc. Code Section 1094.8. E. The action by the Chief of Police will be final unless timely judicial review is sought pursuant to Cal. Civ. Proc. Code Section 1094.8. 5.10.060 Appeals. A. Any interested person may appeal a decision of the Chief of Police regarding an application for an adult business performer license, by filing with the City Clerk a complete notice of appeal within 15 days from the date notice of such decision is mailed. To be deemed complete, the appeal must: 1. Be in writing; 2. State the grounds for disagreement with the Chief of Police's stated decision; 3. Include the address to which notice is to be mailed; 4. Be signed under penalty of perjury; and 5. Be accompanied by the filing fee established by City Council resolution. B. If an appeal is timely filed, the City Manager will hear the appeal. C. The City Clerk must set a hearing date not more than 30 days from the date of the filing of the appeal. The hearing may be continued for good cause. D. The City Manager will issue findings in writing within 15 days of the conclusion of the hearing. 1. The written findings and decision will be sent by certified mail to the appellant. 2. The notice of the decision must include reference to the appellant's right to prompt judicial review under Cal. Civ. Proc. Code Section 1094.8. E. The action by the City Manager will be final unless timely judicial review is sought pursuant to Cal. Civ. Proc. Code Section 1094.8. 5.10.070 Display of license identification cards. A. The Chief of Police 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. B. Every performer must have such card available for inspection at all times the performer is on the premises of the adult business at which he or she performs. 5.10.080 License non - transferable. A. No adult business performer license may be sold, transferred, or assigned by any licensee or by operation of law, to any other person. B. 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 license, and the license thereafter will be void. 5.10.090 Violations. 36 EXHIBIT A A. Any licensee violating any of the provisions of this chapter or the provisions of Chapter 5.08 regulating adult business performers will be subject to license revocation, and any and all other civil remedies. 1. All remedies provided herein are cumulative and not exclusive. 2. Any such violation will constitute a separate violation for each and everyday during which it is committed or continued. The regulations imposed under this chapter are part of a regulatory licensing process, and violations of this chapter do not constitute a criminal offense. Notwithstanding any other provision of this code, the city does not impose a criminal penalty for violations of the provisions of this chapter related to "expressive activities." SECTION 7. The Planning Commission does HEREBY RECOMMEND that Section 17.44.080 (Adult Oriented Businesses) of the Rosemead Municipal Code be DELETED in its entirety. SECTION 8. The Planning Commission does HEREBY RECOMMEND that Section 17.56.025 (Adult Businesses) shall be added to Chapter 56 of Title 17 of the Rosemead Municipal Code to read as follows: 17.56.025 Adult businesses. Adult businesses shall be allowed to locate in the M -1 zone subject to obtaining an adult business license in accordance with Chapters 5.08, 5, 10, and 17.80 of this code. SECTION 9. The Planning Commission does HEREBY RECOMMEND that Chapter 17.80 (Adult Businesses) of the Rosemead Municipal Code be amended to read as follows: Chapter 17.80 ADULT BUSINESSES Sections: 17.80.010 Purpose. 17.80.020 Locational requirements. 17.80.010 Purpose. The purpose of this chapter is to establish a comprehensive set of regulations applicable to the location of adult businesses within the city. The words and phrases used in this section are governed by the definitions contained in Chapters 5.08 and 5.10 of this code. 17.80.020 Locational requirements. 37 EXHIBIT A A. Permitted districts. Adult businesses are permitted in the M -1 Zone. B. Locational standards. 1. Adult businesses may not be located: a. Within 500 feet of any property zoned R -1, R -2, R -3, or any lot where there is an actual residential use within the city limits; b. Within 500 feet of any churches or other places used exclusively for religious worship, whether inside or outside of the city limits; c. Within 500 feet of any public or private school (grades K -12) or child care establishment, whether inside or outside the city limits; d. 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; e. Within 500 feet of any property upon which is located a business with a Type 40, 42, 48 or 61 on -site alcoholic beverage license. f. Within 1,000 feet of any other adult business, whether inside or outside the city limits. g. Within 1,000 feet of any massage establishment, whether inside or outside the city limits. 2. The distances specified in this division will be measured in a straight line, without regard to intervening structures, from the nearest property line 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. Adult business license required. Adult businesses must obtain and maintain an adult business license in compliance with all applicable requirements of Chapter 5.08 of this code. Adult Business Performers must obtain and maintain an adult business performer license in compliance with all applicable requirements of Chapter 5.10 of this code. SECTION 10. The Planning Commission HEREBY RECOMMENDS CITY COUNCIL APPROVAL of Municipal Code Amendment 10 -04 amending regulations for adult businesses within the City of Rosemead. SECTION 11. This resolution is the result of an action taken by the Planning Commission on March 7, 2011 by the following vote: 38 EXHIBIT A YES: NO: ABSENT: ABSTAIN: SECTION 14. The secretary shall certify to the adoption of this resolution and shall transmit copies of same to the applicant and the Rosemead City Clerk. PASSED, APPROVED and ADOPTED this 7 th day of March, 2011. William Alarcon, Chairman CERTIFICATION I hereby certify that the foregoing is a true copy of a resolution adopted by the Planning Commission of the City of Rosemead at its regular meeting, held on 7 th day of March, 2011, by the following vote: YES: NO: ABSENT: ABSTAIN: Stan Wong, Secretary 39 EXHIBIT A AN ORDINANCE OF THE CITY OF ROSEMEAD, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, APPROVING MUNICIPAL CODE AMENDMENT 10 -04, AMENDING CHAPTER 5.08 AND ADDING NEW CHAPTER 5.10 TO THE ROSEMEAD MUNICIPAL CODE PERTAINING TO THE REGULATION OF ADULT BUSINESSES AND ADULT BUSINESS PERFORMERS; AND AMENDING CHAPTERS 17.44, 17.56, AND 17.80 THE ROSEMEAD MUNICIPAL CODE PERTAINING TO THE ZONING AND LOCATIONAL REQUIREMENTS FOR ADULT BUSINESSES. THE CITY COUNCIL OF THE CITY OF ROSEMEAD DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1 . Findings. The City Council of the City of Rosemead hereby finds and declares that: (a) It is necessary and appropriate to amend Chapters 5.08, 17.44, 17.56, and 17.80 of the Rosemead Municipal Code and add new Chapter 5.10 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 licensing 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 potentially 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; and (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; while (3) recognizing that some of the expressive activity associated with certain aspects of adult businesses is constitutionally protected. (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 1 EXHIBIT B 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. 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 may locate or surrounding areas. The need for such special regulations is based upon the nationally and judicially recognized evidence 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 places of religious worship, 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. In addition, 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. (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 2 EXHIBIT B Taft, 215 F.3d 1052 (9th Cir. 2000), cert. 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), cent. denied 531 U.S. 1104 (2001); Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000), cent. 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 I'), 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 Ill'), 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, including but not limited to: Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board of California ( "Vicary'), 99 Cal.AppAth 880 (2002); Tily B., Inc. v. City of Newport Beach, 69 Cal.AppAth 1 (1998); City of National City v. Wiener, 3 CalAth 832 (1993), cent. 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), cent. 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 locational 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 locational 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 ") 3 EXHIBIT B 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. 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 continuing public health threat associated with 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 Rosemead 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 County of Los Angeles "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 County also reports a slight increase in AIDS deaths in 2001. (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 Los Angeles Department of Health Services "Sexually Transmitted Disease Morbidity Report (2000- 2004)," ( "County STD Report"). The County STD Report indicates that the between 2000 and 2004 the number of reported cases in Los Angeles County of: (1) syphilis increased from 1,918 to 2,016; (2) gonorrhea increased from 7,199 to 9,696; and (3) Chaamydia increased from 30,546 to 38,464. It should also be noted that numerous studies have shown that sexually 4 EXHIBIT B transmitted diseases such as syphilis, gonorrhea and chlamydia facilitate the transmission of HIV. 0) In recognition of these negative secondary effects generated by adult live entertainment, a number of courts have upheld prohibitions on totally nude performers, distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and precluded direct exchange of monies between performers and patrons at adult businesses that provide live entertainment, including, but not limited to: 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); Gammoh v. City of La Habra, 395 F.3d 1114 (9 Cir. 2005); Tily B. v. City of Newport Beach (1999) 69 Cal.AppAth 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. Whitfield 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 totally nude performers and 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. A. 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. B. With respect to booths, these findings include the following: The inside walls of the booth are typically covered with graffiti and messages, usually of a sexual nature and consisting of telephone numbers, names, requests and offers for sex acts, anatomical descriptions, and sketches. Some booths also contain a chart used as an appointment schedule that is utilized to schedule appointments for sex acts that take place in that particular booth. In some instances, this arrangement has been used for the solicitation of prostitutes. Many of these booths are equipped with a hole in the side wall between the booths to allow patrons to engage in anonymous sex including both oral and anal sex acts. Inside the booths, the floors and walls are often wet and sticky with liquid or viscous substances, including semen, urine, feces, used prophylactics, gels, saliva, or alcoholic beverages. The City concludes, based in part on the description of the illicit sexual activity as noted within the Attorney General's Report, that the presence of enclosed booths and viewing areas is likely to lead to the above described secondary effects. C. 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 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 Rosemead. D. 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 Ellwest 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; 6 EXHIBIT B 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 licenses and performer licenses are handled fairly and expeditiously; and 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 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. The County Sheriff 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), cent. 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. 7 EXHIBIT B (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 16 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 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), cent. 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 (9 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. 8 EXHIBIT B (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. (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 2 . The City Council finds that this ordinance is enacted in order to mitigate the threat posed to the public peace, health, or safety by adult businesses. In this regard, the findings set forth in Section 1 of this ordinance are incorporated herein by reference. This ordinance provides for the amendment of existing regulations applicable to adult businesses and provides for zoning regulations which are specifically applicable to adult business uses. Such uses are already allowed under the city's existing zoning regulations. Therefore, it can be seen with certainty that there is no possibility that this ordinance may have a significant adverse effect on the environment, and therefore the adoption of this ordinance is exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA Guidelines. The City Council, having final approval authority over this project, has reviewed and considered all comments received during the public review period prior to the approval of this project. SECTION 3. The City Council HEREBY FINDS AND DETERMINES that Municipal Code Amendment 10 -04 is in the best interest of the public necessity and general welfare, and good city planning practice dictates and supports the proposed municipal code amendment, in that the change to the Rosemead Municipal Code will provide a superior level of planning and protection to the quality and character of the City. SECTION 4. The City Council FURTHER FINDS AND DETERMINES that Municipal Code Amendment 10 -04 is consistent with the Rosemead General Plan as follows: The revised adult business regulations are consistent with General Plan Land Use Policy 1.2, to provide buffering between residential and non - residential uses to mitigate potential land use conflicts. The revised adult business regulations will help with the revitalization of Garvey Avenue (Land Use Policy 5.1), the San Gabriel Boulevard corridor (Land Use Policy 5.2), and the Central Business District (Land Use Policy 5.3) and other commercially zoned areas by prohibiting adult businesses in commercial zones. The revised adult business regulations include provisions designed to protect the privacy of adjacent residential properties and the quality of establish neighborhoods, as 9 EXHIBIT B required by Land Use Policy 1.5, by establishing minimum locational siting requirements between adult businesses and residential uses, schools, parks, and playgrounds. NOW, THEREFORE the City Council of the City of Rosemead, County of Los Angeles, State of California, does hereby find, determine and ordain as follows: SECTION 5. Code Amendment. Chapter 5.08 (Adult Businesses) of the Rosemead Municipal Code is HEREBY AMENDED to read as follows: Chapter 5.08 Sections: 5.08.010 Intent. 5.08.020 Definitions. 5.08.030 License required. 5.08.040 Application submittals. 5.08.050 Review of application. 5.08.060 Development and operational standards. 5.08.070 Prohibited conduct at adult businesses. 5.08.080 License requirements; effect of noncompliance. 5.08.090 License duration. 5.08.100 License renewal. 5.08.110 License transferability. 5.08.120 Enforcement and revocation. 5.08.130 Appeals. 5.08.140 Reapplication after denial or revocation. 5.08.150 Violations. 5.08.160 Discontinued use. 5.08.170 Regulations nonexclusive. 5.08.010 Intent. A. The intent of this chapter is to regulate adult businesses that, 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. B. It is neither the intent nor effect of this chapter to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor effect of this chapter 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. C. Nothing in this chapter 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, obscene or harmful matter, or the exhibition or public display thereof. 5.08.020 Definitions. For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. "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 booth or Individual viewing area" means a partitioned or partially enclosed portion of an adult business used for any of the following purposes: A. 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; B. Where adult arcade devices are located. "Adult business" means any business establishment or concern that, as a regular and substantial course of conduct, performs or operates as an adult arcade, adult cabaret, adult model studio, adult store or adult theater, or any combination thereof. It also means any business establishment or concern that, 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 that, 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 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, 11 EXHIBIT B speaking, dancing, acting, posing, simulating, wrestling or pantomiming, in which: (1) the performer exposes to public view, with opaque covering (e.g., pasties and g- string), specified anatomical areas; or (2) the performance or physical human body activity depicts, describes, or relates to specified sexual activities, even if the specified anatomical areas are covered. "Adult model studio" means a business establishment that 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 that 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 that, 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 that, as a regular and substantial course of conduct, presents adult live entertainment, or motion pictures, videos, digital video disks, slide photographs, or other pictures or electronically generated visual reproductions, distinguished or characterized by the emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. "Applicant" means all owners of a proposed adult business applying for an adult business license under this chapter. "Chief of Police" means the Los Angeles County Sheriff or the Sheriff's designee. "Code enforcement officer" means a person authorized to enforce certain provisions of this chapter. "Establishment of an adult business" means any of the following: A. The opening or commencement of any adult business as a new business; B. The conversion of an existing business, whether or not an adult business, to any adult business; C. The addition of any of the adult businesses defined herein to any other existing adult business; or D. The relocation of any such adult business. 12 EXHIBIT B "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, overseeing, 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, oversees, 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 chapter, each officer and director of a corporation and each stockholder holding more than 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. 'Regular and substantial course of conduct' and "regular and substantial portion" means any adult- oriented business where one or more of the following conditions exist: A. The area(s) devoted to the display of sexually oriented material or merchandise exceeds twenty -five (25) percent of the total display area of the business; or B. The business presents any type of live entertainment characterized by an emphasis on specified sexual activity or specified anatomical parts, or performers, models or employees appearing in public dressed only in lingerie, on any four or more separate days within any twelve (12) month period; or C. At least twenty -five (25) percent of the annual gross receipts, as defined by Section 993(f) of the Internal Revenue Code, of the business are derived from the sale, trade, rental, display or presentation of services, products, sexually oriented material or merchandise, or entertainment which are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. This section shall not apply to any video store or bookstore which physically separates sexually oriented material from non - sexually oriented material and does not advertise such sexually oriented material. 13 EXHIBIT B "Religious institution" means a structure which is used primarily for religious worship and related religious activities. "School" means any child care facility, day care facility 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 a nursery school, kindergarten, elementary school, junior high school, senior high school 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. "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 that, for purposes of sexual arousal, provides depictions 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 designed or marketed primarily for the stimulation of human genital organs or sadomasochistic activity, or characterized by an emphasis on matter depicting, describing or relating to specific sexual activities or specified anatomical areas. "Specified anatomical areas" means A. 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 B. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. "Specified sexual activities" means A. Fondling or touching of nude human genitals, pubic region, buttocks or female breast; B. Human sex acts, actual or simulated, including intercourse, oral copulation or sodomy; C. Acts of human masturbation, sexual stimulation or arousal, actual or simulated; D. Human genitals in a state of sexual stimulation or arousal; E. Use of human or animal ejaculation; F. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, bondage or restraints; or G. Excretory functions as part of, or in connection with, any of the activities listed in division (A) through (F) of this definition. 5.08.030 License required. A. No person may establish or operate an adult business within the city without first obtaining, and continuing to maintain in full force and effect, an adult business license. The issuance of an adult business license shall satisfy the requirement of this code that every applicable business obtain a business license. B. Every adult business license is subject to the development and operational standards of this chapter, and the regulations of the zoning district in which the business is located. 5.08.040 Application submittals. A. Application. Any person desiring to obtain an adult business license must submit an application to the City Manager or his or her designee on the form provided by the city. The application must list all owners of the proposed adult business, who are collectively referred to as "the applicant'. The application must also list each designated operator and on -site manager if such persons are not owners. The application must contain the following information regarding the owners, operators and on -site managers, as applicable, and the following items: 1. Name and address. 2. The previous residential addresses of all individuals, if any, for a period of five years immediately prior to the date of filing the application, and the dates of residence at each. 3. Written proof that all individuals are at least 18 years of age. 4. The history of the applicant as to the operation of any adult business or similar business or occupation within five years of the filing of the application. Such information must include a statement as to whether or not each such person, in operating an adult business under a license, has had such license or license revoked or suspended and the reasons therefor. 5. All criminal convictions or offenses described in Section 5.08.060(b)(11); and whether any individual is required to register under the provisions of Cal. Penal Code Section 290 or of the Cal. Health & Safety Code Section 11590. _l 6. Authorization for the city, its agents and employees to seek information and conduct an investigation into the truth of the statements set forth in the application and the qualifications of the individuals. 7. The height, weight, and color of eyes and hair of each individual. 8. Fingerprints and two prints of a recent passport-size photograph of each individual. 9. Business, occupation or employment history of each individual for the five years immediately preceding the date of the application. 10.A non - refundable deposit or fee as set forth by city resolution. 11.A narrative description, of the proposed business, explaining how such business complies or will comply with the applicable development and operational standards specified in Section 5.08.060. 12.A site plan designating the building or unit proposed for the adult business, and a dimensional interior floor plan depicting how the business complies or will comply with the applicable development and operational standards specified in Section 5.08.060. The site plan and interior floor plan need not be professionally prepared, but must be drawn to a designated scale or to an accuracy of plus or minus six inches. 13.A lighting plan for all outdoor areas including parking areas. 14. 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. 15. The fictitious name, if any, of the adult business, together with documentary proof of registration of the fictitious name. 16. 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, or their legally authorized representative, as applicable, must consent to the filing of the application by signing and dating the application. 17.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. a. If the applicant is one or more natural persons, one such person must sign the application under penalty of perjury. 16 EXHIBIT B b. 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. 18.Such additional information as the Chief of Police may reasonably deem necessary. B. Determination of completeness. 1. The Chief of Police will determine whether the application contains all the information and items required by the provisions of this chapter. 2. If it is determined that the application is not complete, the applicant will be notified in writing within five business days of the date of receipt of the application that the application is not complete and the reasons for such determination, including any additional information necessary to render the application complete. a. The applicant will have 30 calendar days to submit additional information to render the application complete. b. Failure to do so within the 30 -day period will render the application void 3. Within five business days following the receipt of an amended application or supplemental information, the Chief of Police will again determine whether the application is complete in accordance with the procedures set forth in this division. a. Evaluation and notification will occur as provided above until such time as the application is found to be complete or the application is withdrawn. b. The applicant will be notified within five days of the date of the application is found to be complete (hereafter "application date "). 4. All notices required by this chapter 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. 5.08.050 Review of application. A. The Chief of Police will promptly cause the investigation of the application and, within 30 days of the application date, either issue the license or send by certified mail a written statement to the applicant, setting forth the reasons for denial of the license. If the Chief of Police has not issued a decision on the application within 30 days of the application date, the application will be deemed approved, subject to an appeal under Section 5.08.130. 17 EXHIBIT B B. The Chief of Police may deny a license for any of the following reasons: 1. An applicant has made one or more material misstatements in the application; 2. That the adult business, if licensed, will not comply with all applicable laws including but not limited to; the building, development, fire, health, housing and zoning codes of the City; 3. An applicant or any designated operator or on -site manager has pled guilty, nolo contendere or been convicted within three years of the application date of an offense specified in Section 5.08.060(b)(10); 4. An applicant or any operator has had a license or license for an adult business denied, revoked or suspended for cause by any city, county or state within three years of the application date; 5. An applicant is under 18 years of age; 6. The applicant failed to pay the filing fee required by this chapter. C. If the license is denied, the Chief of Police 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 5.08.130. D. The decision of the Chief of Police to issue or deny a license will be final unless an appeal is timely filed under Section 5.08.130. 5.08.060 Development and operational standards. A. Development standards. 1. Zoning compliance. a. The building in which an adult business is located must comply with all setbacks, parking, signage and other applicable requirements of the zoning district. However, if the adult- oriented business is the sole use on a lot, no landscaping shall exceed thirty (30) inches in height, except trees with foliage not less than six feet above the ground notwithstanding any landscaping requirements to the contrary. b. The adult- oriented business shall not conduct or 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. -_. c. The adult- oriented business shall not conduct any massage, acupuncture, tattooing, acupressure, fortunetelling or escort services on the premise nor shall any such business be conducted from the same premise as the adult - oriented business. d. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times. e. 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 business 2. Exterior lighting. a. All exterior areas, including parking lots, of the adult business must be illuminated at a minimum of 1.50 footcandle, maintained and evenly distributed at ground level with appropriate devices to screen, deflect or diffuse the lighting in such manner as to prevent glare or reflected light from creating adverse impacts on adjoining and nearby public and private properties. b. Inoperable or broken lights must be replaced within 24 hours. 3. 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 other building or other separate unit within the same building. 4. No minors. a. 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. b. Such notice must be constructed and posted to the satisfaction of the Chief of Police. c. No person under the age of 18 years may be permitted within the premises at any time. 5. Open indoor areas. a. All indoor areas, within which patrons are permitted, except restrooms, must be open to view at all times. 19 EXHIBIT B b. Adult booths and individual viewing areas are prohibited. 6. Restrooms. a. Separate restroom facilities must be provided for male patrons and employees, and female patrons and employees. b. 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. c. The restrooms must be free from any sexually oriented material. d. Restrooms may not contain television monitors or other motion picture or video projection, recording or reproduction equipment. e. This division does not apply to an adult business that deals exclusively with the sale or rental of sexually oriented material that is not used or viewed on the premises, such as an adult store or adult video store, and does not provide restroom facilities to its patrons or the general public. 7. Residential conversions prohibited. No residential structure may be converted for use as an adult business. 8. Portable structures prohibited. No adult business may be located in any temporary or portable structure. B. Operational standards. 1. Hours. No adult business may operate or be open for business between the hours of 2:00 a.m. to 10:00 a.m. 2. Employment of minors prohibited. No owner or operator of any adult business may employ or permit to be employed any person who is not at least 18 years of age. 3. Presence of minors on premises prohibited. a. No owner or operator of an adult business may allow or permit any person under the age of 18 years to enter, be or remain in any such business. b. Operators must determine the age of persons who enter the premises by posting an employee at the entrance to check the driver's license or other authorized identification of each person entering the premises. 4. Screening of interior of premises and display of sexually oriented materials or adult live entertainment. a. 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, or adult live entertainment, from any public way or from any location outside the building or area of such establishment. b. This provision applies to any display, decoration, sign, show window or other, opening. c. 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 Chief of Police. 5. Alcoholic beverages prohibited. No alcoholic beverages may be served, consumed or sold on the premises of an adult business. 6. Illumination. All areas of the adult business must be illuminated at a minimum of the following footcandles, minimally maintained and evenly distributed at ground level: Area , Footcandles stores and other 20 retail establishments theaters and 5 (except during performances, at which time cabarets lighting must be at least 1.25 footcandles) arcades 10 modeling studios 20 7. Security measures. a. On -site manager required. i. 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 the business is open, and shall be given by the owner or operator the responsibility and duty to address and immediately resolve all violations of law taking place on the premises. ii. No performer may serve as an on -site manager. 21 EXHIBIT B iii. If the on -site manager is not an owner, then the owners must provide the Chief of Police with the individual background information set forth in divisions (1) to (9) of Section 5.08.040(A) for such on -site manager, and receive approval for each such on -site manager, utilizing the application process under Section 5.08.050, prior to such individual commencing any managerial duties at the premises. b. Security guards required. 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 one security guard at all times while the business is open. If the occupancy limit of the premises is greater than 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 Chief of Police that their presence is necessary in order to prevent any of the conduct prohibited in this chapter from occurring on the premises. c. Duties and qualifications of security guards. i. Security guards have a duty to prevent violations of law and enforce compliance by patrons with the requirements of this chapter. ii. 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 under state law. iii. No security guard required under this section may act as a door person, ticket seller, ticket taker, admittance person, performer or on -site manager while acting as a security guard. d. Illumination requirements for off - street parking areas and building entries. All off - street parking areas and building entries serving an adult business featuring adult live entertainment must be illuminated during all hours of operation, with a lighting system designed to provide at least an average maintained, horizontal illumination of 1.50 footcandle of light on the parking surface and walkway. ii. This required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the adult business, for the personal safety of patrons and employees, and to reduce the incidence of vandalism and theft. 22 EXHIBIT B iii. The lighting must be shown on the required site or plot plan and must be accompanied by a photometric study. iv. The required lighting must remain on for at least 30 minutes after the closing time of the adult business to promote safety for its employees. e. Security system for off- street parking areas. All off - street parking areas serving an adult business featuring adult live entertainment must have a security system that visually records and retains images of the entire parking area for at least 14 days for the purposes of promoting safety and identifying illegal activity. 8. Adult live entertainment; additional operating regulations. The following additional requirements apply to adult businesses providing adult live entertainment: a. No person may perform adult live entertainment for patrons of an adult business except upon a permanently fixed stage, at least 18 inches above the level of the floor, and surrounded by a three - foot -high barrier or by a fixed rail at least 30 inches in height. i. A distance of at least six feet, measured horizontally, must be maintained between patrons and performers at all times during a performance. ii. No patron may 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 performer is completely separated from the area in which an individual views the performer by a permanent, floor -to- ceiling, solid barrier. b. No performer may have physical contact with any patron, and no patron may have physical contact with any performer, while the performer is performing on the premises. i. This prohibition does not extend to incidental touching. ii. 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 in size. iii. If necessary, patrons must also be advised of the no touching requirements by employees or independent contractors of the establishment. 23 EXHIBIT B c. While on or about the premises, all employees and independent contractors of the adult business, including performers, must wear, at a minimum, an opaque covering that covers their specified anatomical areas. d. If patrons wish to pay or tip performers, payment or tips may be placed in containers placed at least six feet 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. ii. 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 in size. e. The adult business must provide dressing rooms for performers, which are separated by gender and exclusively dedicated to the performers' use, and which the performers must use. i. Same gender performers may share a dressing room. ii. Patrons are not permitted in dressing rooms. f. The adult business must provide an entrance /exit to the establishment for performers that is separate from the entrance /exit used by patrons, and the performers must use this entrance /exit at all times. g. 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 -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 that actually results in) preventing any physical contact between patrons and performers. ii. The patrons must remain at least three feet away from the walk aisle. iii. 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. 9. Adult theater; additional operating requirements. The following additional requirements apply to adult theaters. 24 EXHIBIT B a. 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 so 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, listing 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. 10. No owner, operator or on -site manager of any adult business may have pled guilty, polo contendere or been convicted within the past three 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: Cal. Penal Code Section 243.4, 261, 266a through 266j, inclusive, 267, 314, 315, 316, 318; or Cal. Penal Code Section 647a, b and d; any offense requiring registration under provisions of either Cal. Penal Code Section 290 or Cal. Health & Safety Code Section 11590; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing or giving away of a controlled substance specified in Cal. Health & Safety Code Section 11054, 11055, 11056, 11057 or 11058, as those sections may hereafter be amended. 11. No owner, operator, employee or performer of an adult business may personally solicit, or permit the personal solicitation of, motorists or pedestrians in the vicinity of the adult business. 12. Every adult business must display, at all times during business hours, the license issued pursuant to the provisions of this chapter for such adult business, in a conspicuous place so that the license may be readily seen by all persons entering the adult business. 13. No owner, operator or on -site manager may permit any person on the premises of the adult business to engage in, nor may any performer perform at such premises, a live showing of any of the following: (a) the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, (b) the female breasts with less than a fully opaque covering over any part of the nipple or areola; or (c) covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specific anatomical part required to be covered. 25 EXHIBIT B 14. No performer may be employed, hired, engaged or otherwise retained by an adult business to participate in or give any live performance without first having a valid adult business performer license issued by the city. 5.08.070 Prohibited conduct at adult businesses. A. No person may operate or manage, or cause to be operated or managed, an adult business knowingly, or with reason to know, permitting, suffering, or allowing any employee or independent contractor: 1. To engage in a lap dance with a patron at the business; or 2. To contract or otherwise agree with a patron to engage in a lap dance with a person at the business; or 3. To intentionally touch any patron at an adult business while performing adult live entertainment; or 4. To voluntarily be within six feet of any patron while performing adult live entertainment; or 5. To solicit or request any gratuity, pay or any other form of consideration from a patron on the premises of the adult business while performing adult live entertainment. B. No person at any adult business may intentionally touch an employee or independent contractor who is performing adult live entertainment at the adult business. C. No person at any adult business may engage in a lap dance with an employee or independent contractor at the adult business. D. No person may 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 business. No person may 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 business. E. No performer may engage in a performance or solicit a performance between the hours of 2:00 a.m. and 10:00 a.m. F. No employee or independent contractor at an adult business may appear on the premises of the adult business in the nude, seminude, or display or expose specified anatomical areas. UNI I 3 5.08.080 License requirements; effect of noncompliance. The requirements described in Sections 5.08.060 and 5.08.070 are conditions of an adult business license, and the failure to comply with any applicable requirement is grounds for revocation of the license issued pursuant to this chapter. 5.08.090 License duration. An adult business license is valid for a period of one year from the date of issuance. 5.08.100 License renewal. A. An adult business license must be renewed on an annual basis, provided that the owner and the adult business continues to meet all applicable requirements set forth in this chapter. B. A request for license renewal must be accompanied by an adult business license application, completed in full detail with current information. 1. The application and appropriate fee must be received by the city at least 45 calendar days prior to the expiration of the existing license. 2. The city will process a request for a license renewal in the same manner as the original application. 5.08.110 License transferability. A. No adult business license may be sold, transferred or assigned by any owner, or by operation of law, to any other person unless and until the transferee obtains an amendment to the license from the Chief of Police stating that the transferee is now the owner. 1. Such an amendment may be obtained only if the transferee files an application with the City Manager or his or her designee in accordance with Section 5.08.040 (including payment of the applicable application fee), and the Chief of Police determines, in accordance with Section 5.08.050, that the transferee would be entitled to the issuance of the original license. 2. Without such amendment to the license, any other purported sale, transfer or assignment, or attempted sale, transfer or assignment, will be deemed to constitute a voluntary surrender of the license, and thereafter the license will be null and void. B. An adult business license held by a corporation, partnership or limited liability company is subject to the same rules of transferability. 27 EXHIBIT B C. An adult business license will be valid only for the exact location specified in the license. 5.08.120 Enforcement and revocation. A. Inspections. All law enforcement and code enforcement 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 chapter. B. Grounds for revocation. The Chief of Police may revoke an adult business license when: 1. Any of the applicable requirements of this chapter ceases to be satisfied; or 2. The application is discovered to contain incorrect, false or misleading information; or 3. 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 5.08.060(b)(11); or 4. On two or more occasions within a 12 -month period, any operator, employee, agent or contractor of the 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 5.08.060(b)(11); or 5. The owner, operator or any employee, agent or contractor of the owner has knowingly allowed prostitution, or solicitation for prostitution, on the premises; or 6. The owner, 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 7. The adult business has been operated in violation of any of the requirements of this chapter 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 days following the date written notice of such violation is mailed or delivered to the owner or operator; or 28 EXHIBIT B b. If the violation is of a noncontinuous nature, one or more additional violations of the same provision, or two or more violations of any other of the provisions, of this chapter occur (regardless of whether notice of each individual violation is given to the owner or operator) within any 12 -month period. C. Notice of revocation. 1. Upon determining that grounds for license revocation exist, the Chief of Police will furnish written notice of the proposed revocation to the owner. 2. 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 owner files an appeal under Section 5.08.130. 3. The notice must be delivered both by posting the notice at the location of the adult business, and by sending the same, by certified mail, to the owner as that name and address appears on the license. A. Any interested person may appeal a decision of the Chief of Police regarding an application for, or revocation of, an adult business license, by filing a complete notice of appeal with the City Clerk within 10 days from the date notice of such decision is mailed. To be deemed complete, the appeal must: 1. Be in writing, stating the grounds for disagreement with the Chief of Police's stated decision; 2. Include the address to which notice is to be mailed; 3. Be signed under penalty of perjury; and 4. Be accompanied by the filing fee established by City Council resolution. B. If an appeal is timely filed, the City Manager will hear the appeal and the City Clerk will cause to be set a date for the hearing of the appeal not more than 30 days from the date the appeal is received. 1. The hearing will be a de novo hearing on the action which is the subject of the appealed. 2. At the hearing, the appellant will have the right to offer testimonial, documentary and tangible evidence bearing upon the issues. 3. The City Manager will not be bound by the formal rules of evidence. 29 EXHIBIT B 4. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. C. The City Manager will issue written findings and a decision within 15 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 Cal. Civ. Proc. Code Section 1094.8. D. The action by the hearing officer will be final unless timely judicial review is sought pursuant to Cal. Civ. Proc. Code Section 1094.8. 5.08.140 Reapplication after denial or revocation. A. Reapplication after denial. 1. An applicant for a license under this chapter, whose application for such license has been denied, may not reapply for a license for a period of two years from the date such notice of denial was deposited in the mail or received by the licensee, whichever occurs first. 2. However, a reapplication prior to the termination of two years may be made if accompanied by evidence that the ground or grounds for denial of the application no longer exists. B. Reapplication after revocation. No person may obtain an adult business license for three years from the date any order of license revocation affecting such person has become final. 5.08.150 Violations. A. Any owner, operator, licensee, employee or independent contractor of an adult business violating or permitting the violation of any of the provisions of this chapter will be subject to any and all civil remedies, including license or license revocation. All remedies provided herein are cumulative and not exclusive. B. In addition to the remedies set forth in division (A), any adult business operating in violation of these provisions is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. C. The regulations imposed under this chapter are part of a regulatory licensing process, and any violation of this chapter does not constitute a criminal offense. Notwithstanding any other provision of this code, the city does not impose a criminal penalty for violations of this chapter related to expressive activities. 5.08.160 Discontinued use. Notwithstanding any provision to the contrary in this code, if an adult business is abandoned for a period of six consecutive months, the Chief of Police shall, after public hearing, have the authority to revoke the adult business license. The public hearing shall be noticed in accordance with Government Code Section 65091. 5.08.170 Regulations nonexclusive. The provisions of this chapter 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. SECTION 6. Code Amendment. Chapter 5.10 (Adult Business Performers) shall be added to Title 5 of the Rosemead Municipal Code to read as follows Chapter 5.10 ADULT BUSINESS PERFORMERS Sections: 5.10.010 Purpose. 5.10.020 Definitions. 5.10.030 Adult business performer license required. 5.10.040 Investigation and action on license application. 5.10.050 License revocation. 5.10.060 Appeals. 5.10.070 Display of license identification cards. 5.10.080 License non - transferable. 5.10.090 Violations. A. The purpose of this chapter to provide for the licensing of adult business performers in order to promote the health, safety, and general welfare of the city. B. The intent of the adult business performer licensing provisions are: (1) to protect minors by requiring that all performers be over the age of 18 years; (2) to assure the correct identification of persons performing in adult businesses; (3) to enable the city to deploy law enforcement resources effectively; and (4) to 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. C. 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 31 EXHIBIT B deny access by the distributors or exhibitors of adult businesses to their intended, lawful market. D. Nothing in these regulations is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use that 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. 5.10.020 Definitions. The definitions contained in Chapter 5.08 of this code also apply to this chapter, with the following additions: "Licensee" means a person who is issued an adult business performer license under this chapter. 5.10.030 Adult business performer license required. A. No performer may be employed, hired, engaged, or otherwise retained by an adult business to participate in, or give any performance of, adult live entertainment without first having a valid adult business performer license issued by the city. B. The Chief of Police is responsible for the processing, investigation, and issuance of adult business performer licenses in accordance with this chapter. C. License applicants must file a license application or renewal application with the City Manager or his or her designee on a form provided by the city. At minimum, this application form must 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, 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; 32 EXHIBIT B 8. Satisfactory written proof that the license applicant is a least 18 years of age; 9. The license applicant's fingerprints on a form provided by the city, and two passport -size photographs clearly showing the applicant's face. a. Any fees for the photographs and fingerprints will be paid by the applicant. b. Fingerprints and photographs must be taken within six 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 within five years since the date of conviction or the date of release from confinement to the date of application, whichever is the later date. 11. If the application is made for the purpose of renewing a license, the applicant must attach a copy of the license to be renewed. D. The information provided above in division (C) that is personal, private, confidential, or the disclosure of which could expose the applicant to the risk of harm, including but not limited to, the applicant's residence address, telephone number, date of birth and age, driver's license and Social Security number, will not be disclosed, provided such nondisclosure is in accordance with the California Public Records Act. E. The completed application must be accompanied by a non - refundable application fee and annual license fee. The amount of such fees will be as set forth in the schedule of fees established by City Council resolution. F. The Chief of Police will determine whether the application is complete within two business days. 1. If the Chief of Police determines that the application is incomplete, the Chief of Police must immediately inform the applicant of such fact, and the reasons therefor, including any additional information necessary to render the application complete. 2. Upon receipt of a completed adult business performer application, the Chief of Police will, within two business days, issue a temporary adult business performer license that will automatically expire 30 business days from the date of issuance, unless extended as provided in Section 5.10.040(D). This temporary adult business performer license authorizes a performer to commence performance at an adult business that possesses a valid adult business license authorized to provide adult live entertainment. 33 EXHIBIT B G. The fact that a license applicant possesses other types of state or city permits or licenses does not exempt the license applicant from the requirement of obtaining an adult business performer license. 5.10.040 Investigation and action on license application. A. Upon submission of a completed application and issuance of a temporary adult business performer license, the Chief of Police will promptly cause the investigation of the information contained in the application to determine whether the applicant should be issued an adult business performer license. B. The Chief of Police's decision to grant or deny the adult business performer license must be made within 30 business days from the date the temporary license was issued. 1. If the application is denied, the Chief of Police 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 5.10.060. 2. If the application is granted, the Chief of Police will attach the adult business performer license to the notice. 3. The decision will be mailed or personally delivered to the applicant at the address provided in the application. C. The Chief of Police may 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 license. 2. The applicant is under 18 years of age. 3. The adult business performer license 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 license. 4. The occurrence of any of the events set forth in Section 5.10.030(c)(10). D. If the Chief of Police fails to render a decision on the license within the time frame established by this section, the application will be deemed approved, subject to an appeal under Section 5.10.060. E. Each adult business performer license, other than the temporary adult business performer license described in Section 5.10.020(F), will expire one year from the date of issuance, and may be renewed only by filing with the Chief of Police a written c, request for renewal, accompanied by the annual license fee and a copy of the license to be renewed, at least 30 days prior to the expiration of the license. 1. If the application conforms to the previously approved application and there has been no change with respect to the licensee being convicted of any crime classified by this or any other state as a sex - related offense, and no evidence that the licensee has failed to comply with any of the operating standards of Chapter 5.08 applicable to a performer or the requirements of this chapter, the Chief of Police will renew the license for one year. 2. An application for renewal will be acted upon in the same manner as the application for the original license. 3. If the Chief of Police denies renewal of the application, that decision is also appealable under Section 5.10.060. 5.10.050 License revocation. A. A license may be revoked, based on any of the following causes arising from the acts or omissions of the licensee: 1. The licensee has made a false, misleading or fraudulent statement of material fact in the application for a performer license. 2. The licensee has pled guilty, nolo contendere or been convicted of an offense as set forth in Section 5.10.030(c)(10). 3. The licensee has failed to comply with any of the operating standards of Chapter 5.08 applicable to a performer or the requirements of this chapter. B. In determining that grounds for license revocation or suspension exist, the Chief of Police will furnish written notice of the proposed action to the licensee. 1. Such notice will set forth the time and place of a hearing before the Chief of Police, the grounds, including the factual matters, in support of such proposed action, and the pertinent code sections. 2. The notice will be mailed, postage prepaid, to the last known address of the licensee, or personally delivered to the licensee, at least ten days prior to the hearing date. C. At the hearing, the licensee will have the right to offer testimonial, documentary and tangible evidence bearing upon the issues. 1. The Chief of Police will not be bound by the formal rules of evidence. 35 EXHIBIT B 2. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness at the request of the licensee. D. After the hearing, the Chief of Police will either sustain or overrule the decision of the Chief of Police to issue the initial adult business performer license and render a written decision within two business days of the hearing. 1. The decision will be sent by certified mail to the applicant or licensee. 2. The decision of the Chief of Police must include reference to the right to prompt judicial review under Cal. Civ. Proc. Code Section 1094.8. E. The action by the Chief of Police will be final unless timely judicial review is sought pursuant to Cal. Civ. Proc. Code Section 1094.8. A. Any interested person may appeal a decision of the Chief of Police regarding an application for an adult business performer license, by filing with the City Clerk a complete notice of appeal within 15 days from the date notice of such decision is mailed. To be deemed complete, the appeal must: 1. Be in writing; 2. State the grounds for disagreement with the Chief of Police's stated decision; 3. Include the address to which notice is to be mailed; 4. Be signed under penalty of perjury; and 5. Be accompanied by the filing fee established by City Council resolution. B. If an appeal is timely filed, the City Manager will hear the appeal. C. The City Clerk must set a hearing date not more than 30 days from the date of the filing of the appeal. The hearing may be continued for good cause. D. The City Manager will issue findings in writing within 15 days of the conclusion of the hearing. 1. The written findings and decision will be sent by certified mail to the appellant. 2. The notice of the decision must include reference to the appellant's right to prompt judicial review under Cal. Civ. Proc. Code Section 1094.8. E. The action by the City Manager will be final unless timely judicial review is sought pursuant to Cal. Civ. Proc. Code Section 1094.8. 5.10.070 Display of license identification cards. A. The Chief of Police 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. B. Every performer must have such card available for inspection at all times the performer is on the premises of the adult business at which he or she performs. 5.10.080 License non - transferable. A. No adult business performer license may be sold, transferred, or assigned by any licensee or by operation of law, to any other person. B. 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 license, and the license thereafter will be void. 19011101100190. . A. Any licensee violating any of the provisions of this chapter or the provisions of Chapter 5.08 regulating adult business performers will be subject to license revocation, and any and all other civil remedies. 1. All remedies provided herein are cumulative and not exclusive. 2. Any such violation will constitute a separate violation for each and every day during which it is committed or continued. The regulations imposed under this chapter are part of a regulatory licensing process, and violations of this chapter do not constitute a criminal offense. Notwithstanding any other provision of this code, the city does not impose a criminal penalty for violations of the provisions of this chapter related to "expressive activities." SECTION 7. Code Amendment. Section 17.44.080 (Adult Oriented Businesses) of the Rosemead Municipal Code is HEREBY DELETED in its entirety. SECTION 8. Code Amendment. Section 17.56.025 (Adult Businesses) shall be added to Chapter 56 of Title 17 of the Rosemead Municipal Code to read as follows: 17.56.025 Adult businesses. 37 EXHIBIT B Adult businesses shall be allowed to locate in the M -1 zone subject to obtaining an adult business license in accordance with Chapters 5.08, 5.10, and 17.80 of this code. SECTION 9. Code Amendment. Chapter 17.80 (Adult Businesses) of the Rosemead Municipal Code is HEREBY AMENDED to read as follows Chapter 17.80 Sections: 17.80.010 Purpose. 17.80.020 Locational requirements. 17.80.010 Purpose. The purpose of this chapter is to establish a comprehensive set of regulations applicable to the location of adult businesses within the city. The words and phrases used in this section are governed by the definitions contained in Chapters 5.08 and 5.10 of this code. 17.80.020 Locational requirements. A. Permitted districts. Adult businesses are permitted in the M -1 Zone. B. Locational standards. 1. Adult businesses may not be located: a. Within 500 feet of any property zoned R -1, R -2, R -3, or any lot where there is an actual residential use within the city limits; b. Within 500 feet of any churches or other places used exclusively for religious worship, whether inside or outside of the city limits; c. Within 500 feet of any public or private school (grades K -12) or child care establishment, whether inside or outside the city limits; d. 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; e. Within 500 feet of any property upon which is located a business with a Type 40, 42, 48 or 61 on -site alcoholic beverage license. f. Within 1,000 feet of any other adult business, whether inside or outside the city limits. is g. Within 1,000 feet of any massage establishment, whether inside or outside the city limits. 2. The distances specified in this division will be measured in a straight line, without regard to intervening structures, from the nearest property line 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. Adult business license required. Adult businesses must obtain and maintain an adult business license in compliance with all applicable requirements of Chapter 5.08 of this code. Adult Business Performers must obtain and maintain an adult business performer license in compliance with all applicable requirements of Chapter 5.10 of this code. SECTION 10. Severability. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed and adopted Ordinance No. 903 and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 11. Publication, The City Clerk shall cause this ordinance to be published in the manner required by law. SECTION 12. Effective Date. The Mayor shall sign and the City Clerk attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This ordinance shall go into effect and be in full force and effect thirty (30) days from its date of adoption. PASSED, APPROVED AND ADOPTED this 22nd day of March 2011. Gary Taylor, Mayor ATTEST: Gloria Molleda, City Clerk APPROVED AS TO FORM: Rachel Richman, City Attorney 39 EXHIBIT B ORDINANCE NO. 878 AN URGENCY INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, ESTABLISHING A MORATORIUM ON ADULT BUSINESSES IN THE CITY ' . THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, FINDS AS - FOLLOWS: SECTION 1. FINDINGS. Based on information contained in the record, the City Council makes the following findings: A. 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. The need for such special regulations is 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. B. The City adopted an ordinance regulating adult businesses (referred to in the ordinance as "adult- oriented businesses ") in 1995 ( "Ordinance No. 753 "). The ordinance has not been updated since that time. C. Since the adoption of Ordinance No. 753, there have been a number of studies concerning the adverse secondary side effects of adult businesses in other cities, including but not limited to: Alhambra, California (2007); Industry, California (2004); Dallas, Texas (1997); Houston, Texas, (1997); and Newport News, Virginia (1996). These studies supplement the studies on which the City relied in 1995. It is necessary for the City to review the content of these studies and to determine whether they continue to 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; and 2. New or modified 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. D. 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 EXHIBIT C LA 94838 -9659 -5731 v1 expressive activities protected by the First Amendment of the United States and California Constitutions but instead desires to enact at a reasonable time, place, and manner regulations that address the adverse secondary effects of adult businesses. The City Council further recognizes that, subsequent to the adoption of Ordinance No. 753, the United States Supreme Court has issued a number of decisions 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); and City of Erie v. Pap's A.M. (Kandyland'), 529 U.S. 277, 120 S.Ct. 1382 (2000). Further, the United Stated Court of Appeals for the Ninth Circuit has issued a number of decisions during that time, 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 Taff, 215 F.3d 1052 (9th Cir. 2000), cert: 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), cent. 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 W), 199 F.3d 1111 (9th Cir. 2000); Baby Tam & Co -, Inc. v- City of Las Vegas ("Baby Tam Ill'), 247 F.3d 1003 (9th Cir. 2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); and Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053 (2000). And there have been several cases in California state courts during that time, including but not limited to: Krantz 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.AppAth 880 (2002); and Tily B„ Inc. v. City of Newport Beach, 69 Cal.AppAth 1 (1998). E. The City needs to study the foregoing cases and the rights and limitations set forth therein in order to amend Ordinance No. 753 and ensure that the rights of owners of adult businesses are properly balanced with the limitations on those businesses that are put in place to protect against the potential harmful secondary effects of the businesses. F. There exist possible harmful effects on children and minors exposed to the effects of adult businesses and the City Council 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 at seq.). The City Council further understands that these cases 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.App.4th 1075 (1995). These cases and the Penal Code provisions must be studied to properly balance the rights of owners of adult businesses and adult - oriented businesses with the limitations on those businesses. G. 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 EXHIBIT C LA#4838 -9658 -5731 vi 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 is aware of the facts recited in the case of Key, 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. The City needs to study these facts to properly balance the rights of owners of adult businesses and adult- oriented businesses with the limitations on those businesses. H. 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. Further, 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. Some performers at adult businesses have been found to engage in acts of prostitution with patrons of the establishment. 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. 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. 1. There is a specific danger from the sexually transmitted disease AIDS, which is currently irreversible and fatal, In addition; the City is also concerned with preventing the spread of other sexually transmitted diseases such as Syphilis, Gonorrhea and Chlamydia. J. Recognizing the negative secondary effects generated by live adult entertainment, there have been a number of court decisions since the adoption of Ordinance No. 753 upholding distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and precluded direct exchange of monies between performers and patrons at adult businesses that provide live entertainment, including, but not limited to: Gammoh v. City of La Habra, 395 F.3d 1114 (9 Cir. 2005); Tity B. v. City of Newport Beach (1999) 69 Cal.AppAth 1; and Cotacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998). These decisions need to be studied to properly balance the rights of owners of adult businesses with the limitations on those businesses. K. 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 operating standards currently in EXHIBIT C LA #4838- 9658 -5731 v( place need to be reviewed in light of the legal precedents and studies cited above to properly balance the rights of owners of adult businesses with the limitations on those businesses. L, The City needs to review and possibly revise its adult business licensing procedures and operating regulations. The establishment of an adult business regulatory licensing process, operating standards for adult businesses and performer licensing provisions are, legitimate and reasonable means of ensuring that adult business operators have specific guidelines with respect to the manner in which they can operate an adult business, that applications for adult business regulatory licenses and performer licenses are handled fairly and expeditiously; and that operators of and performers at adult businesses comply with the City's regulations so as to mitigate the recognized adverse secondary impacts of adult businesses. M. It may be necessary to amend the Rosemead Municipal Code in order to determine the appropriate zoning districts and locations for potential adult businesses and establish the permitting and operating standards for adult businesses, and establish a licensing process for adult business performers. The public health, safety and welfare of the City and its residents require the study of adult businesses and the enactment of an ordinance and 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. N. Prior to making any amendments to the City's Municipal Code, it is necessary and appropriate to retain the status quo in order to protect against the potential adverse secondary effects of adult businesses. SECTION 2. IMPOSITION OF MORATORIUM The City Council orders as follows: A. In accordance with the authority granted the City of Rosemead under Government Code § 65858(a), and pursuant to the findings stated herein, for a period of 45 days from the date of adoption of this Ordinance: No adult business may be established or operated in any zone of the City. EXHIBIT C LA 0483 9- 9658.5731 v 2. No use permit, site development permit, tentative map, parcel map, variance, grading permit, building permit, building plans, zone change, business license or other applicable approval will be accepted, approved or issued for the establishment or operation of an adult business. B. As used in this Ordinance, "adult business" is defined as per Section 17.80.020 of the City's Municipal Code, and the definition in this ordinance incorporates by reference all other terms defined in that Section. SECTION 3. EFFECTIVE DATE AND DURATION Pursuant to Government Code § 65858(a) this Ordinance shall take effect immediately but shall be of no further force and effect forty -five (45) days from its date of adoption, unless the City Council, after notice and public hearing as provided under Government Code § 65858(a) and adoption of the findings required by Government Code § 65858(c), subsequently extends this Ordinance. SECTION 4. REPORT ON INTERIM MORATORIUM Pursuant to Government Code § 65858(d), 10 days prior to the expiration or any extension of this Interim Ordinance, the City Council will issue a written report describing the measures taken to alleviate the conditions which led to the adoption of this Interim Ordinance. SECTION 5. PUBLICATION The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published and posted pursuant to the provisions of law in that regard and this Ordinance shall take effect immediately and shall be in effect for a period of 45 days. INTRODUCED at the special meeting of Rosemead City Council on June 30, 2009. PASSED, APPROVED AND ADOPTED this day of Jon 2009. Margaret-Clark, Mayor ATTEST: } p ' 4 ' W te-c-a"o" EXHIBIT C LA #4833- 9658 -5731 V1 Gloria Molleda, City Clerk APPROVED AS TO FORM: �� U/1 NSW EXHIBIT C LA 94838-9658-5731 el STATE OF CALIFORNIA } COUNTY OF LOS ANGELES ) SS. CITY OF ROSEMEAD ) 1, Gloria Molleda, City Clerk of the City of Rosemead, California, do hereby certify that the foregoing Urgency Ordinance No. 878 was regularly introduced and placed upon its first reading at a special meeting of the City Council on the30th of June, 2009. That after said Ordinance was duly adopted and passed by the following vote to wit: Yes: Armenta, Clark, Low, Ly, Taylor No: None Absent: None Abstain: None f ly) r r., 01v ,.Ia Gloria Molleda City Clerk iW M1141 . mmmmmmmam 162 ft N CityGI$ Copyright O 2006 All Rights Reserved. The information contained herein is the proprietary property of the contributor supplied under license and may not be approved except as licensed by Digital Map Products. �l�LLLIJ T B l. Are p 8ds„ —i 0 Sin � ONO c bo ^b O c; Q .0 0� wroy A e A 4 m 8 N ° O�4 gi - m U �n ^ n� ° nVmmO OrvgV p l / a� E«G-�.S � d J Z , ° owo % N � m e 0pA m F q � iti �' O e ry ryry h � ¢ a M n O I F. rT_ — _ ' ve�norro Y _ / C s 3)l T O v oe S'd M / or- znvn'y sn !° °C O K Q . 9 501� vj M 8;933/ a s e e/ e / / ��#�}'�p / \c 0 n 4/ $ O ° p a o / °F� � i2j-79 m N �d� g z K �? Q Temple City BI. 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