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HomeMy WebLinkAboutOrdinance 298 CERTIFICATION I, Marcia M. Torgerson, City Clerk of the City of Atascadero, hereby certify that the foregoing is the true and correct original of Ordinance No. 298 adopted by the Atascadero City Council at a regular meeting thereof held on March 12, 1996 and that it has been duly published pursuant to State Law. DATED: J �2 1 'I WA Marcia M. Torgerson City Clerk City of Atascadero, California ORDINANCE NO. 298 AN ORDINANCE OF THE CITY OF ATASCADERO ESTABLISHING THE ATASCADERO SEXUALLY ORIENTED BUSINESS ORDINANCE BY DISPERSING SEXUALLY ORIENTED BUSINESSES AND LIMITING THEM TO SPECIFIED ZONING DISTRICTS; PROVIDING FOR LICENSING AND REGULATION OF SEXUALLY ORIENTED BUSINESSES AND EMPLOYEES; ANDPROVIDING ADDITIONAL HEALTH AND SAFETY REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES WHEREAS, sexually oriented businesses in the incorporated area of the City of Atascadero require special supervision from public safety and health agencies of the County in order to protect and preserve the health, safety and welfare of the patrons of such businesses as well as citizens of the City; and WHEREAS, the City Council and staff have conducted an extensive review of land use studies concerning the secondary effects of sexually oriented businesses in other cities including, but not Limited to, Garden Grove, California (1991); Phoenix, Arizona (1986); Minneapolis, Minnesota (1980); Houston, Texas (1983); Indianapolis, Indiana (1984); Amarillo, Texas (1977); City of Los Angeles, California (1977); Cleveland, Ohio (1977); Austin, Texas (1986); Seattle, Washington (1989); Oklahoma City (1986); Beaumont, Texas ( 1982); Pleasanton, California (1995) and Whittier, California (1978); have conducted its own meetings involving real estate appraisers, commercial businesses, residential owners, and parents in Atascadero ; and WHEREAS, from review of other cities' studies and their own contacts with and testimony from its citizens there is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both existing businesses around them and the surrounding residential areas adjacent to them, causing among other adverse secondary effects, increased crime and downgrading of property values; and WHEREAS, it is recognized that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are operating in close proximity to each other, thereby contributing to crime, lower property values, urban blight and downgrading of the quality of life in the adjacent area; and Ordinance No. 298 Page 2 WHEREAS, the City Council finds that sexually oriented businesses commonly involve or contribute to unlawful sexual activities including prostitution, sexual liaison of casual nature; and WHEREAS, increased crime and unhealthful conduct tend to accompany, concentrate around and be aggravated by sexually oriented businesses including but not limited to prostitution, pandering, exposing minors to harmful materials, possession and distribution of obscene materials and child pornography, possession and sale of controlled substances and violent crimes against persons and property; and WHEREAS, concern over sexually transmitted diseases, including AIDS, is a legitimate health concern of the City which demands reasonable regulations of sexually oriented business in order to protect the health and well being of the citizens; and WHEREAS, the City Council has considered in part, each of the following matters: (a) areas within close walking distance of single and multiple family dwellings should be free of sexually oriented business uses: (b) areas where children could be expected to walk, patronize, or frequent to be free of sexually oriented business uses; (c) sexually oriented business uses should be located in areas of the City which are not in close proximity to residential uses, churches, parks, or other public facilities and schools; (d) the image of the City of Atascadero as a pleasant attractive place to reside will be adversely affected by the presence of sexually oriented business uses in close proximity to residential land uses, churches, parks and other public facilities, and schools; (e) sexually oriented business land use should be regulated by zoning to separate it from other dissimilar uses just as any other land use should be separated from uses with characteristics different from itself; (f) residents of the City of Atascadero and persons who are non-residents but use the City for shopping and other commercial needs will move from the community or shop elsewhere if sexually oriented businesses land uses are allowed to locate in close proximity to residential uses, churches, parks, and other public facilities, and schools; (g) merchants in the commercial area of the City are concerned about the adverse impact and the character and quality of the City in the event that sexually oriented business land uses are located within close proximity to residential uses, churches, parks, and other public facilities, and schools, and that such locations will reduce retail trade to commercial uses in the vicinity, thus reducing property values and tax revenues to the City; and that such adverse affect on property values and business would cause the loss to some commercial districts within the City leading to further deterioration of the commercial quality of the City, and (h) no evidence has been Ordinance No. 298 Page 3 presented to show that location of sexually oriented businesses within the City will improve the commercial viability or quality of life of the community; and WHEREAS, zoning, licensing and other police power regulations are legitimate reasonable means of accountability to insure the operator of sexually oriented businesses comply with reasonable regulations and are located in places which minimize the adverse secondary effects which naturally accompany the operations; and WHEREAS, the City recognizes the possible harmful effects on children and minors exposed to the effects of such businesses and the deterioration of respect for family values, and the avoidance of such businesses which necessitate children walking through or visiting in the immediate neighborhood of such businesses; and WHEREAS, the City Council finds that there would be a deterioration in the quality of businesses which chose to operate in and around such sexually oriented businesses; and WHEREAS, the City Council desires to minimize and control these adverse secondary effects and thereby protect the health, safety and welfare of the citizens; protect the citizens from increased crime; preserve the quality of life; preserve the property values and the character of surrounding neighborhoods and businesses, deter the spread of urban blight and protect against the threat to health from the spread of communicable and social diseases; and WHEREAS, the City Council recognizes that the exceptions, where sexually oriented businesses are permitted to be established without regard to distance regulations, are either inward looking configurations, or those isolated from direct view from public streets, parks, schools, boys' clubs, girls' clubs, or similar youth organizations, public buildings, religious institutions or residential districts or uses. This configuration reduces the adverse secondary effects associated with sexually oriented businesses by segregating such businesses away from the aforementioned sensitive uses, and placing them in a location where they do not effect the public health, safety, and moral climate of the community as a whole. It decreases the problems of harassment of neighborhood adults and children, littering of sexually explicit reading material and paraphernalia, loitering, and visual blight. In addition, this promotes the City's interests by shifting part of the regulatory burden to the private sector. A shopping center or resort complex has its own signage, paint and landscaping restrictions, as well as hours of operation, parking, and security. The City is relieved from some of the regulatory burden while protecting the City's commercial tax base; and Ordinance No. 298 Page 4 WHEREAS, the City Council has considered the decisions of the United States Supreme Court regarding local regulation of sexually oriented businesses, including but not limited to Young v. American Mini-Theaters, Inc., 427 U.S. 50 (1976) reh. denied 429 U.S. 873; Renton v. Playtime Theaters, 475 U.S. 41 (1986) reh. denied 475 U.S. 1132; FW/PBS Inc. v. Dallas, 493 U.S. 215 (1990); and Barnes v. Glen Theater, 501 U.S. 560 (1991); and City of National City v. Wiener, et al. , 3 Cal.4th 832 (1993). Toganga Press, Inc. et al. v. City of Los Angeles, 939 F. 2d 1524 (1993); and WHEREAS, the City Council has determined that locational criteria alone do not adequately protect health, safety and general welfare of the people of Atascadero and thus certain requirements with respect to the ownership and operation of sexually oriented businesses is in the public interest. WHEREAS, the City Council consistent with sale and consumption of alcohol and outside advertising limitations further finds that restricted hours of operation will further prevent the adverse secondary effects of sexually oriented business; WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance which addresses the adverse secondary effects of sexually oriented businesses; the City's interest in regulation of sexually oriented business establishments is unrelated to the suppressing of free expression. WHEREAS, experience in other cities indicates that a permitted concentration of adult entertainment establishments and their proliferation throughout the community would be inconsistent with the community goals of the City's General Plan. WHEREAS, the adoption of an adult entertainment ordinance will aid in preserving the quality of the community that permits Atascadero to continue as a "colony" of fine homes with a quality business environment. WHEREAS, the image and vitality of the City of Atascadero as a pleasant and attractive place to reside and do business will be adversely affected by the presence of sexually oriented land uses in close proximity to residential land uses, churches, parks and other public facilities, schools, and certain commercial zones. WHEREAS, regulation of sexually oriented business land uses should be developed to prevent deterioration and/or degradation of the community before the Ordinance No. 298 Page 5 problem exists, rather than in response to an existing problem. WHEREAS, no evidence has been presented to show that location of sexually oriented business land uses within the City will improve the commercial viability of the community. WHEREAS, a reasonable regulation of the location of sexually oriented land uses will provide for the protection of the image of the community and its property values, and protect the residents of the community from the adverse effects of such sexually oriented land uses, while providing to those who desire to patronize such businesses, an opportunity in areas within the City which are appropriate for location of such land uses. NOW THEREFORE, The City Council of the City of Atascadero does ordain as follows: SECTION 1. PURPOSE AND INTENT. It is the purpose and intent of this Ordinance to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the City and to establish reasonable and uniform regulations to prevent any deleterious location and concentration of sexually oriented businesses within the City, thereby reducing or eliminating the adverse secondary effects from such sexually oriented businesses. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. SECTION 2. DEFINITIONS. For the purposes of this division, certain terms and words are defined as follows: A. "Sexually oriented businesses" are those businesses defined as follows: 1 . "Adult arcade" means an establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image producing machines, Ordinance No. 298 Page 6 (including but not by way of limitation any machine or device that produces images by use of computer software, optical discs, compact discs or similar method), for viewing by five or fewer persons each, are regularly used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas". 2. "Adult Bookstore", "Adult Novelty Store" or "Adult Video Store" means a commercial establishment which devotes more than 25% of the total floor area used for display, sale or rental to display, sell or rent, for any form of consideration any of or combination of the following: a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations (including but not by way of limitation any machine or device that produces images by use of computer software, optical discs, compact discs or similar method), which are distinguished by their emphasis on depiction or description of "specified sexual activities" or "specified anatomical areas," or defined as obscene matter or harmful matter by California Penal Code Sections 311, or 313, or their respective successor sections; b. Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others. c. An establishment may have other principal business purposes that do not involve the offering for sale rental or viewing of materials depicting or describing "specified sexual activities" or "specified anatomical areas", and still be categorized as adult bookstore, adult novelty store, or adult video store. Such other business purposes will not serve to exempt such establishments from being categorized as an adult bookstore, adult novelty store or adult video store so long as it meets the 25% threshold as described in 2 (a) and (b) above. Ordinance No. 298 Page 7 3. "Adult cabaret" means a nightclub, bar, restaurant "bottle club", or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features: (a) persons who appear nude or in a state of nudity or seminude; (b) live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities", or (c) films, motion pictures, video cassettes, slides, or other photographic reproductions, (including but not by way of limitation any machine or device that produces images by use of computer software, optical discs, compact discs or similar method), which are characterized by the depiction or description of " specified sexual activities" or "specified anatomical areas". An adult cabaret is a sexually oriented business. 4. "Adult motel" means a motel, hotel or similar commercial establishment which: (a) offers public accommodations, for any form of consideration, which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions a substantial portion of the total presentation time of which is characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas" and which advertises the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising including but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television, or (b) offers a sleeping room for rent for a period of time less than ten (10) hours; or (c) allows a tenant or occupant to sub-rent the sleeping room for a time period of less than ten (10) hours. An adult motel is a sexually oriented business. 5. "Adult motion picture theater" means a commercial establishment where films, motion pictures, video cassettes, slides or similar photographic reproductions (including but not by way of limitation any machine or device that produces images by use of computer software, optical discs, compact discs or similar method), which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas" are regularly shown for any form of consideration. Use is regular when the specified presentations constitute a substantial part of the theater's revenues. An adult motion picture theater is a sexually oriented business. 6. "Adult Theater" means a theater, concert hall, auditorium, or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by exposure of "specified anatomical areas" or by Ordinance No. 298 Page 8 "specified sexual activities." Such activity is regularly featured when the specified activity appearances, or performances, or any combination thereof, constitute a substantial part of all the theater's activities, appearances, or performances. An adult theater is a sexually oriented business. 7. "Massage parlor" means any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment manipulation of the human body which occurs as a part of or in connection with "specified sexual activities", or where any person providing such treatment, manipulation, or service related thereto, exposes his or her "specified anatomical areas". 8. "Nude Model Studio" means any place where a person, who regularly appears in a state of nudity or displays "specified anatomical areas" is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. A nude model studio is a sexually oriented business. 9. "Sexual encounter establishment" means a business or commercial establishment, that as one of its primary business purposes, offers for any form of consideration, a place where two or more persons may congregate, associate, or consort for the purpose of "specified sexual activities" or the exposure of "specified anatomical areas" or activities when one or more of the persons is in a state of nudity or semi-nude. The definition of sexually oriented businesses shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy. A sexual encounter establishment is a sexually oriented business. B . "Employee" means a person who works or performs in and/or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage or other compensation by the operator of said business. C. "Establishment" means and includes any of the following: 1 . The opening or commencement of any such business as a new business; 2. The conversion of an existing business, whether or not a sexually oriented business, to any of the sexually oriented businesses defined in this chapter; Ordinance No. 298 Page 9 3. The addition of any of the sexually oriented businesses defined in this chapter to any other existing sexually oriented business; or 4. Addition of sexually oriented business to an existing business if the addition results in enlarging the place of business. Enlargement means an increase in the size of the building or area in which the business is conducted by either construction or use of an adjacent building or any position thereof, whether located on the same or an adjacent lot. 5. The relocation of any such sexually oriented business. D . "Nudity or State of Nudity" means: (a) the appearance of human bare buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast; or (b) a state of dress which fails to opaquely and fully cover a human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast. E. "Operator" means and includes the owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises. F. "Permitted or Licensed Premises" means any premises that requires a license and/or permit and that is classified as a sexually oriented business. G "Permittee and/or Licensee " means a person in whose name a permit and/or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license. H. "Person" means an individual, proprietorship, partnership, corporation, association, or other legal entity. I. "Public building" means any building owned, leased or held by the United States, the state, the county, the city, any special district, school district, or any other agency or political subdivision of the state or the United States, which building is used for governmental purposes. J. "Public park" or "recreation area" means public land which has been designated for park or recreational activities including but not limited to a park, playground, nature trails, swimming pool, reservoir, athletic field, Ordinance No. 298 Page 10 basketball or tennis courts, pedestrian/bicycle paths, open space, wilderness areas, or similar public land within the city which is under the control, operation, or management of the city park and recreation authorities. K . "Religious institution" means any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities. L. "Residential District or Use" means a single family, duplex, townhouse, multiple family, or mobile park or subdivision and campground as defined in the Municipal Code. M. "School" means any public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, and universities. School includes the school grounds, but does not include the facilities used primarily for another purpose and only incidentally as a school. N. "Semi-Nude" means a state of dress in which clothing covers no more than the genitals, pubic, region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices. 0 . "Sexually Oriented Business" means an adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor, sexual encounter establishment, or nude model studio. P. "Specified Anatomical Areas," as used in this division means and includes any of the following: 1. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areolae; or 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. Q . "Specified Sexual Activities," as used in this Division, means and includes Ordinance No. 298 Page 11 any of the following: 1 . The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts; 2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; 3. Masturbation, actual or simulated; or 4. Human genitals in a state of sexual stimulation, arousal or tumescence; 5. Excretory functions as part of or in connection with any of the activities set forth in subdivisions (1) through (4) of this subsection. R. "Substantial Enlargement of a Sexually Oriented Business" means increase in the floor areas occupied by the business by more than 15%, as the floor areas exist on the effective date of this ordinance. SECTION 3. ESTABLISHMENT AND CLASSIFICATION OF BUSINESSES REGULATED. A. The establishment of a sexually oriented business shall be permitted only in the CS (Commercial Services) and I (Industrial) zones, and shall be subject to the following restrictions. No person shall cause or permit the establishment of any of the following sexually oriented businesses, as defined above, within 1,000 feet of another such business or within 1,000 feet of any religious institution, school, boys' club, girls' club, or similar existing youth organization, or public park or public building. 1 . adult arcade 2. adult bookstore, adult novelty store or adult video store 3. adult cabaret 4. adult motel 5. adult motion picture theater 6. adult theater 7. massage parlor 8. sexual encounter establishment or 9. nude model studio. Ordinance No. 298 Page 12 B. Nothing in this Section prohibits the location of sexually oriented businesses within retail shopping centers in all zones and within zones wherein such activities will have their only frontage upon enclosed malls or malls isolated from direct view from public streets, parks, schools, religious institutions, boys' clubs, girls' clubs, or similar existing youth organization, public buildings or residential districts or uses without regard to the distance requirements of Subsection A. above. C. Nothing in this Section prohibits the location of a home occupation that otherwise complies with the Atascadero Municipal Code. D. No sexually oriented business shall be established within the Downtown Zone 1 (Pedestrian Commercial Zone), Downtown Zone 2 , (Downtown Commercial Zone), Downtown Zone 3 (Restaurant and Entertainment Zone) or Downtown Zone 4 (Commercial Zone). SECTION 4. MEASUREMENT OF DISTANCE. As regarding Section 3, paragraph A., distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business. The distance between any sexually oriented business and any religious institution, public or private elementary or secondary school, boys club, girls club, or similar existing youth organization, or public park or public building or any properties zoned for residential use or used for residential purposes shall also be measured in a straight line, without regard to intervening structures or objects from the nearest portion of the building or structure used as part of the premises where the sexually oriented business is conducted, to the nearest property line of the premises of a religious institution, public or private elementary or secondary school, boys club, girls club, or similar existing youth organization, or public park or public building or any properties zoned for residential use or used for residential purposes. SECTION 5. LOCATION OF SEXUALLY ORIENTED BUSINESSES. The City of Atascadero's Zoning Ordinance hereby requires that sexually oriented businesses shall be permitted only as provided in Section 3 in which such use is listed as permissible. Permits for sexually oriented businesses shall be required and governed by the procedures and policies specified in Section 8 et. seq. of this division. In addition, any sexually oriented business shall be subject to the following restrictions: Ordinance No. 298 Page 13 1 . The person commits a misdemeanor, if he operates or causes to be operated a sexually oriented business except as provided in Section 3. 2. The person commits a misdemeanor if he operates or causes to be operated a sexually oriented business within 1,000 feet of: (a) any religious institution; (b) any school; (c) a public park adjacent to any residential district; (d) a boys club, girls club, or similar existing youth organization, except as provided in Section 3. B. 3. A person commits a misdemeanor if he operates or causes to be operated a sexually oriented business within 1,000 feet of another such business, which will include, any adult arcade, adult book store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor or any sexual encounter establishment, except as provided in Section 3. B. 4. A person commits a misdemeanor if he causes or permits the operation, establishment, or maintenance of more than one sexually oriented business within the same building, structure, or portion thereof, except as provided in Section 3.13., or causes the substantial enlargement of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business. 5. It is a defense to prosecution under this section if a person appearing in a state of nudity did so in a modeling class operated: a. by a proprietary school, licensed by the State of California; a college, junior college, or university supported entirely or partly by taxation; b. by a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or c. in a structure: (1) which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is Ordinance No. 298 Page 14 available for viewing; and (2) where, in order to participate in a class a student must enroll at least three (3) days in advance of the class; and (3) where no more than one nude model is on the premises at any one time. SECTION 6. REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED BUSINESSES. A. Any sexually oriented businesses lawfully operating on, the effective date of this ordinance that is in violation of Sections 3 and 5 of this division, shall be deemed a non-conforming use. A non-conforming use will be permitted to continue for a period of five years, with a possible extension of two years to be granted by the Planning Commission only upon a convincing showing of extreme financial hardship which is defined as the recovery of the initial financial investment in the non-conforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such non conforming uses shall not be increased, enlarged, extended or altered except to a conforming use. If two (2) or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at the particular location is the conforming use and the later established business(es) is non-conforming, except as provided in Section 3.13. B. A sexually oriented business lawfully operating as conforming use is not rendered a non-conforming use by the location, subsequent to the grant or renewal of a sexually oriented business permit and/or license, of a church, public or private elementary or secondary school, public park, public building, residential district, or residential lot within 1 ,000 feet of the sexually oriented business. This provision applies only to the renewal of valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. C. Any establishment subject to the provision of this section shall apply for the permit provided for by Section 10 within thirty (30) days of the effective date of this ordinance. Any establishment, existing prior to the effective date of this ordinance, shall comply with the regulations pertaining to Ordinance No. 298 Page 15 Sections 20 and 22, within sixty (60) days of the effective date of this ordinance, and all other applicable permit regulations within thirty (30) days of the effective date of this ordinance. SECTION 7. INJUNCTION A person who operates or causes to be operated a sexually oriented business without having a valid permit due to locational restrictions is subject to a suit for injunction as well as prosecution for the criminal violation. Such violation shall be punishable by a fine of $1,000. 00 and/or thirty (30) days imprisonment, and if an injunction must be sought, attorneys fees and costs will be assessed at the discretion of the Court against the sexually oriented business. SECTION 8. SEXUALLY ORIENTED BUSINESS PERMIT: PURPOSE AND INTENT. It is the purpose of this ordinance to regulate sexually oriented businesses to promote the health, safety, morals and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent deleterious effects of sexually oriented businesses within the City. The provisions of this Ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this Ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent or effect of this Ordinance to in any way condone or legitimize the distribution of obscene or harmful to minors' material. SECTION 9. PERMIT REQUIRED A. No sexually oriented business shall be permitted to operate without a valid sexually oriented business permit issued by the City for the particular type of business. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business without said permit. B. The City Manager or his/her designee is responsible for granting, denying, revoking, renewing, suspending, and canceling sexually oriented business permits for proposed or existing sexually oriented businesses. The City Manager or his/her designee is also responsible for ascertaining whether a Ordinance No. 298 Page 16 proposed sexually oriented business for which a permit is being applied for complies with all locational requirements of Sections 3, S, and 6 of this Ordinance, all applicable zoning laws and/or regulations now in effect or as amended or enacted subsequent to the effective date of this Ordinance in the City and the City Comprehensive Plan. C. An application for a permit must be made on a form provided by the City. Any person desiring to operate a sexually oriented business shall file with the City an original and two copies of a sworn permit application on the standard application form supplied by the City or designee. D. The completed application shall contain the following information and shall be accompanied by the following documents: 1 . If the applicant is: a. an individual, the individual shall state his/her legal name and any aliases and submit satisfactory proof that he/she is eighteen years of age; b. a partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any; c. a corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of California the names and capacity of all officers, directors and principal stockholders, and the name of the registered corporate agent and the address of the registered office for service of process. 2. If the applicant intends to operate the sexually oriented business under a name other than that of the applicant; he must state 1) the sexually oriented business's fictitious name. 3. The single classification of permit for which the applicant is filing. 4. The location of the proposed sexually oriented business, including a legal description of the property, street address, and telephone number(s), if any. Ordinance No. 298 Page 17 5. The applicant's mailing addresses and residential address. 6. A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to scale or drawn with marked dimensions of the interior of the premises. 7. If a person who wishes to operate a sexually oriented business is an individual, he/she must sign the application for a permit as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a ten percent (10%) or greater interest in the business must sign the application for a permit as applicant. If a corporation is listed as owner of a sexually oriented business or as the entity which wishes to operate such a business, each individual having a ten percent (10%) or greater interest in the corporation must sign the application for a permit as applicant. 8. If a person wishes to operate a sexually oriented business which shall exhibit on the premises films, video cassettes, or other video reproductions which depict specified sexual activities or specified anatomical areas, then said person shall comply with the application requirements stated at Section 20 et. seq. E . Applicants for a permit under this Section shall have a continuing duty to promptly supplement application information required by this Section in the event that said information changes in any way from what is stated on the application. The failure to comply with said continuing duty within thirty (30) days from the date of such change, by supplementing the application on file with the City Manager or his/her designee, shall be grounds for suspension of a permit. F. In the event that the City Manager or his/her designee determines or learns at any time that the applicant has improperly completed the application for a proposed sexually oriented business, he/she shall promptly notify the applicant of such fact and allow the applicant ten (10) days to properly complete the application. (The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.) G. The premises must be inspected and found to be in compliance with health, fire and building codes and laws. Ordinance No. 298 Page 18 H. The applicant shall be required to pay a non-refundable application fee of one hundred dollars ($100.00) at the time of filing an application under this Section of this Ordinance. I . Prior to obtaining any permit or license to operate any sexually oriented business defined in this Ordinance, and as part of any application for a permit under this Section, the applicant shall obtain from the City or its designee a certification that the proposed location of such business complies with the locational requirements of Section 5 and 6 of this Ordinance. J. The fact that a person possesses other types of State or City permits and/or licenses does not exempt him/her from the requirement of obtaining a sexually oriented business permit. SECTION 10. INVESTIGATION AND APPLICATION. A . Upon receipt of an application properly filed with the City and upon payment of the non-refundable application fee, the City or its designee, shall immediately stamp the application as received and shall immediately thereafter send photocopies of the application to any other City agencies responsible for enforcement of health, fire and building codes and laws. Each department or agency shall promptly conduct an investigation of the applicant, application and the proposed sexually oriented business in accordance with its responsibilities under law and as set forth in this Ordinance. Said investigation shall be completed within twenty (20) days of receipt of the application by the City or its designee. At the conclusion of its investigation, each department or agency shall indicate on the photocopy of the application its approval or disapproval of the application, date it, sign it, and, in the event it disapproves, state the reasons therefor. B. A department or agency shall disapprove an application if it finds that the proposed sexually oriented business will be in violation of any provision of any statute, code, ordinance, regulation or other law in effect in the City. After its indication of approval or disapproval, each department or agency shall immediately return the photocopy of the application to the City or its designee. Ordinance No. 298 Page 19 SECTION 11. ISSUANCE OF PERMIT. A . The City Manager or his/her designee, shall grant or deny an application for a permit within thirty (30) days from the date of its proper filing. Upon the expiration of the thirtieth (30th) day, unless the applicant requests and is granted a reasonable extension of time, the applicant shall be permitted to begin operating the business for which the permit is sought, unless and until the City or its designee, notifies the applicant of a denial of the application and states the reasons(s) for that denial. B . Grant of Application for Permit 1 . The City Manager or his/her designee, shall grant the application unless one or more of the criteria set forth in Section C below is present. 2. The permit, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. C. Denial of Application for Permit 1 . The City Manager or his/her designee, shall deny the application for any of the following reasons: a. An applicant is under eighteen years of age. b. An applicant has failed to provide information required by this Section or permit application for the issuance of the permit or has falsely answered a question or request for information on the application form. c. The premises to be used for the sexually oriented business have not been approved as being in compliance with health, fire and building codes by the department or agency responsible under law for investigating said compliance. d. The application or permit fees required by this Ordinance have not been paid. e. An applicant of the proposed business is in violation of, or is not in compliance with, any of the provisions of this Ordinance Ordinance No. 298 Page 20 including but not limited to the zoning locational requirements for a sexually oriented business under Sections 3, 5, and 6. f. The granting of the application would violate a statute, ordinance, or court order. 2. If the City Manager or his/her designee, denies the application, he/she shall notify the applicant of the denial and state the reasons(s) for the denial. 3. If a person applies for a permit for a particular location within a period of twelve (12) months from the date of denial of a previous application for a permit at the location, and there has not been an intervening change in the circumstances which could reasonably be expected to lead to a different decision regarding the former reasons for denial, the application shall be denied. SECTION 12. ANNUAL PERMIT FEE The annual fee for a sexually oriented business permit is Eight Hundred Fifty Dollars ($850.00). SECTION 13. INSPECTION A. An applicant or permittee shall permit representatives of the Code Enforcement Office, the County Health Department, and the Fire Department to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business. B . It shall be unlawful and a person who operates a sexually oriented business regardless of whether or not a permit has been issued for said business under this Ordinance, or his/her agent or employee commits a misdemeanor if he/she refuses to permit such lawful inspection of the premises at any time that it is occupied or open for business. SECTION 14. EXPIRATION OF PERMIT. A. Each permit shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in Section 11 (for renewals, Ordinance No. 298 Page 21 filing of original survey shall be sufficient) of this Ordinance. Application for renewal shall be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the expiration of the permit will not be affected. SECTION 15. REVOCATION OF PERMIT. A . The City Manager or his/her designee shall revoke a permit if a cause of suspension in Section 15. of this Ordinance occurs and the permit has been suspended within the preceding twelve (12) months. B . The City Manager or his/her designee, shall revoke a permit upon determining that: 1 . A permittee gave false or misleading information in the material submitted during the application enhance the applicant's opportunity for obtaining a permit; or 2. A permittee or an employee has knowingly allowed possession, use or sale of controlled substances in or on the premises; or 3. A permittee or an employee has knowingly allowed prostitution on the premises; or 4. A permittee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or any other specified sexual activities to occur in or on the permitted premises. C. When the City Manager or his/her designee, revokes a permit, the revocation shall continue for one (1) year and the permittee shall not be issued a sexually oriented business permit for one (1) year from the date revocation became effective. If, subsequent to revocation, the City Manager or his/her designee finds that the basis for revocation under Section 15 of this Ordinance has been corrected, the applicant shall be granted a permit if at least ninety (90) days have elapsed since the date revocation became effective. If the permit was revoked under Section 15 of this Ordinance, an applicant may not be granted another permit until the number of years required under Section 16. have elapsed. Ordinance No. 298 Page 22 SECTION 16. REVIEW OF PERMIT DENIAL, SUSPENSION OR REVOCATION. After denial of an application, or denial of a renewal of an application, or suspension or revocation of a permit, the applicant or permittee may seek prompt review of such administrative action through the City Council or special City Review Board if one is established by the City. SECTION 17. TRANSFER OF PERMIT. A. A permittee shall not operate a sexually oriented business under the authority of a permit at any place other than the address designated in the application for permit. B . A permittee shall not transfer his permit to another location. C . Any attempt to transfer a permit either directly or indirectly in violation of this Section is hereby declared void and the permit shall be deemed revoked. SECTION 18. REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS IN VIDEO BOOTHS. A. A person who operates or causes to be operated a sexually oriented business, other than a sexually oriented motel/hotel and regardless of whether or not a permit has been issued to said business under this Ordinance, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements: 1 . Upon application for a sexually oriented business permit, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations, the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area with no dimension greater than eight (8) feet. The diagram shall also designate the place at which this permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some Ordinance No. 298 Page 23 designated street or object and should be drawn to a designated scale with marked dimensions sufficient to show the various internal dimension of all areas of the interior of the premises to an accuracy of plus or minus six (6) inches. The City Manager or his/her designee, may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. 2. The application shall be sworn to be true and correct by the applicant. 3. No alteration in the configuration or location of a manager's station may be made without the prior approval of the City or its designee. 4. It is the duty of the owners and operator of the premises to insure that at least one employee is on duty and situated at each manger's station at all times that any patron is present inside the premises. 5. The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises have two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. 6. It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present on the premises to insure that the view area specified in Subsection 5 remains unobstructed by any doors, walls, merchandise, display racks or other materials or person at all times and to insure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection a. of this Section. 7. No viewing room may be occupied by more than one person at any one time. No holes, commonly known as "glory holes," shall be allowed in the walls or partitions which separate each viewing room from an adjoining viewing room or restroom. Ordinance No. 298 Page 24 8. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access and an illumination of not less than two (2.0) foot candle as measured at the floor level. 9. It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present on the premises to insure that the illumination described above is maintained at all times that any patron is present on the premises. B. A person having a duty under Section 9 commits a misdemeanor if he/she knowingly fails to fulfill that duty. SECTION 19. PROHIBITIONS REGARDING MINORS AND SEXUALLY ORIENTED BUSINESSES. A person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and knowingly or with reasonable cause to know, permit, suffer, or allow: A. Admittance of a person under eighteen (18) years of age to the business premises unless accompanied by a parent or guardian; B. A person under eighteen (18) years of age to remain at the business premises unless accompanied by a parent or guardian; C. A person under eighteen (18) years of age to purchase goods or services at the business premises without the specific consent of a parent or guardian; or D. A person who is under eighteen (18) years of age to work at the business premises as an employee. SECTION 20. ADVERTISING AND LIGHTING REGULATIONS. A. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and advertises the presentation of any activity prohibited by any applicable State statute or local ordinance. Ordinance No. 298 Page 25 B. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and displays or otherwise exhibits any materials depicting, describing, or relating to specified sexual activities or specified anatomical areas from any public property or way outside the building area of the business. This provisions shall apply to any display, decoration, sign, show window, or other opening. This prohibition shall not extend to advertising of the existence or location of such sexually oriented business. C. The permittee shall not allow any portion of the interior premises to be visible from outside the premises. D. All off-street parking areas and premise entries of the sexually oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one (1 .0) foot candle of light on the parking surface and/or walkways. This required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the sexually oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct. The lighting shall be shown on the required sketch or diagram of the premise. E. Nothing contained in this Section of the Ordinance shall relieve the operator(s) of a sexually oriented business from complying with the requirements of the City of commonly known as the Sexually Oriented Business Ordinance, as it may be amended from time to time, or any subsequently enacted City ordinances or regulations, nor shall anything contained herein relieve a sexually oriented business from complying with other development, performance, design, and signage requirements of the Zone in which they are located. SECTION 21. HOURS OF OPERATION. A. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and allows such business to remain open for business, or to permit any Ordinance No. 298 Page 26 employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 2:00 a.m. and 6:00 a.m. of any particular day. B. It shall be unlawful and a person commits a misdemeanor if, working as an employee of a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, said employee engages in a performance, solicits a performance, makes a sale, solicits a sale, provides a service, or solicits a service between the hours of 2:00 a.m. and 6:00 a.m. of any particular day. SECTION 22. NUDITY AT SEXUALLY ORIENTED BUSINESSES PROHIBITED. A. The United States Supreme Court decision in Barnes v. Glen Theater, Inc., 501 U.S. 560, 111 (1991) which upheld the rights of cities to prohibit live public exposure of a person'(s) private parts, specifically applies to sexually oriented businesses (regardless of whether or not a permit has been issued to said businesses under this Ordinance), including said businesses where no alcoholic beverages are sold, served, or consumed at the premises. B . Public nudity is prohibited within the City of Atascadero including any sexually oriented business. Any sexually oriented business which is found in violation of this section shall have its permit suspended pursuant to the provisions of Section 15. SECTION 23. ADDITIONAL CRIMINAL PROHIBITIONS FOR THE OPERATION OF A SEXUALLY ORIENTED BUSINESS WITHOUT A VALID PERMIT. A. In addition to the criminal provisions found at other sections of this Ordinance, the following additional criminal provisions shall also apply to sexually oriented businesses. B. It shall be unlawful and a person commits a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and said person knows or should know that: 1 . The business does not have a sexually oriented business permit under this Ordinance for any applicable classification; Ordinance No. 298 Page 27 2. The business has a permit which has been revoked; or 3. The business has a permit which has expired. SECTION 24. EXEMPTIONS. A. It is a defense to prosecution for any violation of this Ordinance that a person appearing in a state of nudity did so in a modeling class operated: 1 . By a college, junior college, or university supported entirely or partly by taxation; 2. By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or: 3. In a structure: a. Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and b. Where, in order to participate in a class a student must enroll at least three days in advance of the class; and c. Where no more than one nude model is on the premises at any one time. SECTION 25. CRIMINAL PENALTIES AND ADDITIONAL LEGAL, EQUITABLE, AND INJUNCTIVE RELIEF. A . In addition to whatever penalties are applicable under the California Penal Code, if any person fails or refuses to obey or comply with or violates any of the criminal provisions of this Ordinance, such person upon conviction of such offense, shall be guilty of a misdemeanor and shall be punished by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment not to exceed sixty (60) days in the City jail, or both, in the discretion of the Court. Each violation or noncompliance shall be considered a separate and distinct offense. Further, each day of continued violation or non-compliance shall be considered as a separate offense. B. Nothing herein contained shall prevent or restrict the City from taking such Ordinance No. 298 Page 28 other lawful action in any court of competent jurisdiction as is necessary to prevent or remedy any violation or non-compliance. Such other lawful actions shall include, but shall not be limited to, an equitable action for injunctive relief or an action at law for damages. C. All remedies and penalties provided for in this Section shall be cumulative and independently available to the City and the City shall be authorized to pursue any and all remedies set forth in this Section to the full extent allowed by law. D. The owners, operators and managers of premises which constitute a sexually oriented business are responsible for compliance with this Code. SECTION 26. SEVERABILITY If any section, subsection or clause of this ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby and shall remain in effect. On motion by Councilperson Carden and seconded by Councilperson Johnson, the foregoing Ordinance is hereby adopted in its entirety on the following roll call vote: AYES: Councilmembers Bewley, Carden, Johnson, Luna and Mayor Highland NOES: None ABSENT: None ADOPTED: March 12, 1996 ATTEST CITY OF ATASCADERO By: LEE PRi E, City Clerk IbEORdt P. HIG'kOND, Mayor Ordinance No. 298 Page 29 APPROVED AS TO FORM: ,�kv "'a zk� ",-� ROY A. ANLEY, Dep City Attorney