PC - 2011-02 - Municipal Code Amendment 10-04 Consisting of Amendments to the Rosemead Municipal Code for Purpose of Revising Adult Businesses RegulationPC 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
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.
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2. Regulations for adult businesses should be developed to prevent
deterioration or degradation of the vitality of the community before the problem exists, rather
than waiting for problems to be created.
(c) Based on the foregoing, the City Council finds and determines that special
regulation of adult businesses is necessary to ensure that their adverse secondary effects will
not contribute to an increase in crime rates or to the deterioration of the areas in which they
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 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), cert. denied 531 U.S.
1104 (2001); Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000), cert. denied 121
S.Ct. 1189 (2001); Alameda Books v. City of Los Angeles, 222 F.3d 719 (9th Cir. 2000),
cert. granted 121 S.Ct. 1223 (2001); Baby Tam & Co., Inc. v. City of Las Vegas ( "Baby
Tam 1'), 154 F.3d 1097 (9th Cir. 1998); Baby Tam & Co., Inc. v. City of Las Vegas ( "Baby
Tam W), 199 F.3d 1111 (9th Cir. 2000); Baby Tam & Co., Inc. v. City of Las Vegas ( "Baby
Tam 111 ), 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
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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), cert. denied 510 U.S. 824; People v. Superior Court (Lucero) 49
Cal.3d 14 (1989); and City of Vallejo v. Adult Books, 167 Cal.App.3d 1169 (1985), cert.
denied 475 U.S. 1064 (1986); and other federal cases, including but not limited to: Hang
On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); Mitchell v. Commission on Adult
Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jackson, 973 F.2d
1255 (5th Cir. 1992), cert. denied 507 U.S. 1030 (1993); International Eateries v. Broward
County, 941 F.2d 1157 (11th Cir. 1991), cert. denied 503 U.S. 920 (1992); and Star
Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986).
(e) The 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.
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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.
(j) 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).
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(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.
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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 comply with the City's
regulations;
2. The recognized adverse secondary impacts of a proposed adult
business are mitigated;
3. Adult business operators have specific guidelines with respect to the
manner in which they can operate an adult business;
4. The applications for adult business regulatory 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
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regulations which will minimize and /or eliminate such exposure. The City Council takes
legislative notice of the Penal Code provisions authorizing local governments to regulate
matter that is harmful to minors (i.e., Penal Code § 313 et seq.). The City Council further
takes legislative notice of the cases that recognize that protection of minors from sexually
explicit materials is a compelling government interest, including Crawford v. Lungren, 96
F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa
Barbara, 40 Cal.AppAth 1075 (1995).
(p) While the City Council desires to protect the rights conferred by the United
States Constitution to adult businesses, it does so in a manner that ensures the continued
and orderly use and development of property within the City and diminishes, to the greatest
extent feasible, those undesirable adverse secondary effects which the above mentioned
studies and judicial record have shown to be associated with the operation of adult
businesses.
(q) Operating standards are a legitimate and reasonable means of ensuring that
adult businesses are conducted in a manner so as to minimize their adverse secondary
effects and to help assure that such operators and businesses comply with reasonable
regulations related to such requirements to minimize and control problems associated with
such businesses and thereby protect the health, safety, and welfare of City residents,
protect citizens from increased crime, preserve the quality of life, preserve property values
and the character of surrounding neighborhoods and businesses, and deter the spread of
urban blight. The operational requirements contained in this ordinance do not
unreasonably restrict the establishment or operation of constitutionally protected adult
businesses in the City.
(r) The City Council, in adopting operational standards, recognizes that these
standards do not preclude reasonable alternative avenues of communication. For
example, the closing hours requirement means that adult businesses are free to operate 7
days a week for 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
va'ious 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 ofHallie, 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.
(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.
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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.
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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,
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),
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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.
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"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, forthe 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.
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"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 orsexually oriented torture, beating, orthe infliction of pain, bondage
or restraints; or
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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.
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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 orwill 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, togetherwith 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.
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.
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1. The Chief of Police will determine whether the application contains all the
information and items required by the provisions of this chapter.
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;
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;
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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.
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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
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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.
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 maybe 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.
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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
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7. Security measures.
a. On -site manager required.
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:
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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 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.
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.
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.
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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.
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.
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.
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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.
i. 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.
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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
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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.
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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
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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
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.
M .
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 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.
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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
ADULT BUSINESS PERFORMERS
Sections:
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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.
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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.
K£
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 forthe 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
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.
34
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;
35
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.
NET
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
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:
.,
YES: Eng, Herrera, Hunter and Ruiz
NO: NONE
ABSENT: NONE
ABSTAIN: Alarcon
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.
Wiliam Alarcon, Chairma
0
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:
Eng, Herrera, Hunter and Ruiz
NONE
NONE
Alarcon
M1