Loading...
HomeMy WebLinkAboutMinutes 062398 Approved as Submitted DATE: 07/14/98 MINUTES ATASCADERO CITY COUNCIL MEETING TUESDAY,JUNE 23, 1998 CLOSED SESSION, 6:30 P.M.: 1) Conference with labor negotiator(Govt. Code Sec. 54957.6) Agency Negotiator: City Manager Employee organizations: Department Heads, Mid-Management/Professional, Atascadero Fire Captains, Atascadero Firefighters, Service Employees Intl. Union Local 620,Atascadero Sergeants Service Orgn., Atascadero Police Officers Assoc., Atascadero Public Safety Technicians Orgn. 2) Conference with legal counsel (Govt. Code Sec. 54956.9 (b)) Significant exposure to litigation. Mayor Pro Tem Johnson adjourned the Closed Session at 6:53 p.m. and City Attorney Roy Hanley stated the Council had given direction to City Manager Wade McKinney. REGULAR SESSION, 7:00 P.M.: Mayor Pro Tem Johnson called the Regular Session to order at 7:00 p.m. and Council Member Clay led the Pledge of Allegiance. ROLL CALL: Present: Council Members Clay, Lerno, Luna and Mayor Pro Tem Johnson. Absent: Mayor Carden Others Present: City Clerk Marcia M. Torgerson Staff Present: City Manager Wade McKinney, Fire Chief Mike McCain, Police Chief Dennis Hegwood, Community Services Director Brady Cherry, Acting Finance Director Rachelle Rickard, Community Development Director Paul Saldana,Assistant City Engineer John Neil, Finance Technician Valerie Humphrey, and City Attorney Roy Hanley. APPROVAL OF AGENDA: Mayor Pro Tem Johnson announced that the Council is going to adjourn to the Redevelopment Agency Meeting before going back into Closed Session. MOTION: By Council Member Luna and seconded by Council Member Clay to approve the agenda. Motion passed 4:0 by a roll-call vote. COUNCIL ANNOUNCEMENTS AND REPORTS: Mayor Pro Tem Johnson announced he attended the meeting for the North County Cuesta College Campus Master Plan which included representatives from Paso Robles, Templeton and Atascadero. He stated there will be two public meetings on this issue; June 24th at 3:00 p.m. at the Atascadero Unified School District Board Room, and July 2 at 7:00 p.m. in the same location. PRESENTATIONS: City Manager Wade McKinney introduced new employee, Office Assistant Kathy Buth to the Council. Mr. McKinney stated that she will be working in the City Manager's office. COMMUNITY FORUM: Curtis Clark, 6906 Portola Road, asked that the Council put on a future Council agenda proposed ordinance amendments to the existing Sexually Oriented Business Ordinance. He stated that he had given the Council a sample of the proposed amendments two months ago (see Exhibit A). Eric Greening, 7365 Valle, asked the Council to let the Legislature know that it is not acceptable to leave local governments out of the picture when balancing their budget. Mayor Pro Tem Johnson stated that the Council has gone on record with the State Legislature on this issue. Mayor Pro Tem Johnson closed Community Forum. Mayor Pro Tem Johnson asked City Attorney Roy Hanley if he had any comments on Mr. Clark's proposal. Mr. Hanley stated that the Council is free to put on their agenda any item they want at a time they feel appropriate. Mayor Pro Tem Johnson asked staff to come back with a report on Mr. Clark's proposed amendments to the Sexually Oriented Business Ordinance.. CC 06/23/98 Page 2 of 7 A. CONSENT CALENDAR: Roll Call 1. City Council Minutes—May 26, 1998 — (City Clerk recommendation:Approve) 2. City Council Minutes—June 9, 1998 —(City Clerk recommendation: Approve) 3. Zone Change#97011 —Amending the land use designation from"Public"to "Commercial Park"between 1200-1800 El Camino Real (Davidson)—Fiscal Impact: Positive (Planning Commission recommendations: Council adopt Ordinance No. 349, waive reading in full and introduce for second reading by title only, approving Zone Change #97011. [Paul Saldana] 4. Graves Creek Road Over1gy Project—Award of Agreement for Construction—Fiscal Impact: $350,834 (Staff recommendation: Council authorize the Mayor, by Minute Order, to execute an Agreement for the Construction of Graves Creek Road Overlay Project with Souza Construction, Inc.) [Brady Cherry] MOTION: By Council Member Luna and seconded by Council Member Lerno to approve the Consent Calendar Items #A-1,2,3 & 4. Motion passed 4:0 by a roll-call vote. B. PUBLIC HEARINGS: 1. Sewer Service Charges—Authorization to place on the 1998-99 property tax rolls— Fiscal Impact: Revenue of$1,348,743.16 (Staff recommendation: Council adopt Resolution No. 1998-027 authorizing placement of Sewer Service Charges on the 1998- 99 property tax rolls. [Brady Cherry] Community Services Director Brady Cherry gave the staff report. There was no public comment on this item. Council Member Luna stated that there was a time in Atascadero when there were some entities that should have been paying sewer fees who were not. He asked what progress is being made on collecting those delinquent charges. City Manager Wade McKinney stated he did not know but would look into it and report back to Council. MOTION: By Council Member Luna and seconded by Council Member Clay to adopt Resolution No. 1998-027, authorizing placement of Sewer Service Charges on the 1998-99 property tax rolls. Motion passed 4:0 by a roll-call vote. CC 06/23/98 Page 3 of 7 2. 1998-99 Proposed Budget—Amending the 1997-98 Budget and Adopting the 1998-99 Budget--Fiscal Impact: Revenues of$12,676,127 and expenditures of$15,108,985 (Staff recommendation: 1) Adopt Resolution 1998-030 amending the 1997-98 Budget, and 2)Adopt Resolution 1998-026 adopting a budget for the 1998-99 fiscal year and delegating to the City Manager authority to implement same) /Rachelle Rickard] City Manager Wade McKinney gave the staff report. Council Member Luna explained with an overhead projection(page C-1 of the proposed budget) how the City has been able to improve its financial condition. He thanked the City Employees for helping the City financially by not taking a cost of living increase for five years. He asked if Atascadero might consider a 2-year budget. Mr. McKinney stated that next year, we could consider a 2-year budget. Council Member Luna stated that he does not support hiring a City Engineer. Council Member Luna also stated that he does not support having the Compliance Officer under the Community and Economic Development Department. He asked staff to explain how they would respond to someone who felt it was a conflict of interest; protecting the City's natural resources and the role of overseeing the economic development of the City. Community and Economic Development Director Paul Saldana explained that much of the Compliance Officer's responsibilities include zoning and land use violations. He said that each violation is reviewed and delegated to the appropriate employee or department. Mr. Saldana stated that septic system failures are now being referred to the Health Department for evaluation. He went on to explain, in detail, how compliance issues are being handled in the Community and Economic Development Department including administrative citations, abatement,judicial remedies and mediation. Mr. Saldana also stated that he does include other departments if needed to solve a compliance issue. Council Member Lerno thanked the employees for the years of no cost of living raises and asked Mr. McKinney to explain, for the benefit of the public,the loan from the Wastewater Fund and give an update on the street maintenance program proposed. Mr. McKinney explained that staff is proposing in this budget for the Amapoa-Tecorida Impact Fees Fund to borrow from the Wastewater Fund approximately $150,000 to complete the Amapoa-Tecorida Storm Drain Project. This would allow the City to use the Streets and Bridges Impact Fees Fund for additional street projects. The Amapoa-Tecorida District collects approximately $20,000 annually and could pay the Wastewater Fund back. Council Member Clay also thanked the employees for their help financially and their hard work. Council Member Lerno also stated that he supports the hiring of a City Engineer. PUBLIC COMMENT Lon Allan,6815 Santa Lucia, spoke on behalf of the Board of Directors of the Atascadero Historical Society. He explained that they pre-date the City in City Hall having the museum here since 1967 at a rate of$100.00 per year. He stated, for the record, that the Board is concerned about the City's assessment of the 2600 sq.ft. they occupy. They hope that the newly assigned CC 06/23/98 Page 4 of 7 cost of$23,000 annually will not become the rent for the space. City Manager Wade McKinney explained that the assessment of all City buildings is a recognition of the City's holdings. Eileen Allan, Executive Director of the North County Women's Resource Center and Shelter, asked Council to fund community-based organizations such as Loaves and Fishes, Salvation Army, The Link and The Women's Shelter Program. She explained that these agencies provide essential services to residents of Atascadero. Ms. Allan stated that if these agencies are not funded, it will impact the City's emergency services. Diane Mann, 7715 Sinaloa Ave, President of Loaves and Fishes, asked the Council to include them in the budget. She explained the services they provide and stressed the impact on the City if they were not available to the public. Jonni Biaggini, Executive Director of the San Luis Obispo County Visitors and Conference Bureau,thanked the Council for their past support. Eric Greening, 7365 Valle, stated that he was astonished that community projects were not recommended for funding in this proposed budget. Mayor Pro Tem Johnson closed the Public Comment period. Mayor Pro Tem Johnson suggested that Atascadero work with a strategy to include community projects, including the use of CDBG funds. Council Member Lerno supported the recommendation to have staff come back with a strategy to include community projects. He also asked Eileen Allan if there is a timetable for qualifying for grants. Ms. Allan said it's a yearly process. Council Member Luna stated he would support a strategy to include community projects. He suggested that the mid-year budget would be a better time to review this. Council Member Clay asked if staff had the figures on how much The Loaves and Fishes and The Women's Shelter received last year from the CDBG funding. Acting Finance Director Rachelle Rickard told the Council that page F-21 of the proposed budget shows a history of CDBG funding from 1995 through 1999. Eileen Allan stated that the last time the Women's Shelter received money from the City from the General Fund was 1995-96 and they received $4,500. Council Member Clay agreed with the other Council Members to look into a strategy to include community projects. MOTION: By Council Member Luna and seconded by Council Member Lerno to adopt Resolution No. 1998-030 amending the 1997-98 Budget, and Resolution No. 1998-026 adopting a budget for the 1998-99 fiscal year and delegating to the City Manager authority to implement same. Motion passed 4:0 by a roll-call vote. CC 06/23/98 Page 5 of 7 C. MANAGEMENT REPORTS: 1. Designation of Redevelopment Survey—for redevelopment project study purposes —Fiscal Impact: None (Staff recommendation: Approve Resolution 1998-029 designating a redevelopment survey area) [Paul Saldana] Community Development Director Paul Saldana gave the staff report and answered questions of Council. The Council questioned the size of the area designated by staff and Mr. Saldana explained the process. Mr. Saldana explained that the $35,000 budgeted is the maximum that would be charged by a consultant. The actual area to be surveyed will be reduced. PUBLIC COMMENT Rush Kolemaine, P.O Box 1990, stated that he supported staff's recommendation. Mayor Pro Tem Johnson closed the Public Comment period. MOTION: By Council Member Lerno and seconded by Council Member Luna to adopt Resolution No. 1998-029 designating a redevelopment survey area. Motion passed 4:0 by a roll-call vote. 2. Consideration of Ballot Measure—on General Municipal Election,November 3, 1998 - Fiscal Impact: None (Staff recommendation: No action) [Wade McKinney] City Attorney Wade McKinney gave the staff report and explained staff's recommendation of no action. There was Council consensus that there isn't enough time to prepare a ballot measure. Council Member Clay stated that he felt we should have a survey before putting this issue on a ballot. Council Member Luna stated he felt that this recommended ballot measure is too broad-based. He explained that the ballot measure should ask for,one million dollars and the establishment of a record of how we are going to resolve the problem and see if there is citizen support. PUBLIC COMMENT Rush Kolemaine, P.O. Box 1990, stated that he felt that there should be a ballot measure for each request such as Streets and Zoo. Mayor Pro Tem Johnson closed the Public Comment period. There was Council consensus to take no action on this item. CC 06/23/98 Page 6 of 7 3. Information Bulletin D. COMMITTEE REPORTS Finance Committee Council Member Luna announced that they reviewed the budget at their last meeting. Economic Vitality Corporation, Board of Directors Mayor Pro Tem Johnson stated that they have their annual planning workshop tomorrow. Paul Saldana will be speaking at the meeting. E. INDIVIDUAL DETERMINATION AND/OR ACTION: None. F. ADJOURNMENT: Mayor Pro Tem Johnson adjourned the Regular Session at 8:20 p.m. to the Redevelopment Agency Meeting immediately following this meeting. CLOSED SESSION: 1) Conference with real property negotiator(Govt. Code Sec. 54956.9) Negotiator: City Manager Wade McKinney Property: Parcel #028,152,001 Negotiating parties: John Dunn& City of Atascadero Under negotiation: Instruction to negotiator will concern price and terms of payment. Mayor Pro Tem Johnson adjourned the Closed Session at 8:50 p.m. to the next scheduled Regular Session on July 14, 1998. City Attorney Roy Hanley announced that the Council gave the City Manager direction in the Closed Session. MINUTES RECORDED AND PREPARED BY: M44 mL )LI, -/ P r4401- Marcia M. Torgerson, City Vierk Exhibit A—Proposed amendments from Curtis Clark CC 06/23/98 Page 7 of 7 Attachment: Exhibit A Atascadero City Council Meeting Date: June 23, 1998 April 6, 1998 Atascadero City Council 6500 Palm Ave. Atascadero, CA 93422 RE: Proposed Amendments to Atascadero's Sexually Oriented Business Ordinance Dear Councilmember: Local regulation of sexually oriented businesses is unquestionably necessary to reduce or eliminate the adverse secondary effects to a community. To our City's advantage and this council's credit, an initial ordinance regulating sexually oriented businesses was enacted approximately two years ago. Since that time, awareness of the deleterious effects SOB'S have on a community has continued to grow both locally and nationally. The adverse secondary effects including increased crime, downgrading of property values and quality of life in the adjacent area, urban blight, unlawful sexual activities and increased transmission of disease which tend to accompany, concentrate around and be aggravated by SOB's are among the commonly cited concerns. To date, effective local regulation still constitutes the principal mechanism to ameliorate the harm caused by SOB's. Well reasoned, and practical ordinances are basic to,a sensible and useful regulation of SOB'S, to promote the health, safety, morals, and general welfare of the citizens of a community.like Atascadero. Toward that end, a review of our city's current ordinance was undertaken in light of existing legal precedent, which resulted the proposal, of certain amendments, a copy of which is attached hereto. The rationale behind and some of the plenteous authority for each of the proposed amendments.to our current ordinance, are briefly summarized as follows: LAW OFFICE OF CURTIS L. CLARK 6906 Portola Road ■ Atascadero, CA 93422 (805) 466-4397 ■ Telephone/Telefax Atascadero City Council April 6, 1998 Page 2 Sec. 5-10.06. Regulations governing existing sexually oriented businesses. The current ordinance allows for nonconforming uses to be permitted for a period of five (5) years with a possible extension of two (2) years. The amendment shortens these periods to a more reasonable time frame of one (1) year with a possible one (1) year extension. There is no question that amortization of existing uses by SOB's to lessen the harmful secondary effects is specifically authorized in California law. "Zoning ordinances may validly provide for the eventual termination of non-conforming property uses without compensation if the ordinance provides for a reasonable amortization period." City of Whittier v. Walnut Properties, Inc., (1983) 149 Cal. App. 3d at 644 Time periods as short as 90 days have been upheld. California courts have placed the burden of establishing the unreasonableness of the amortization period upon the person complaining. See City of Whitter supra, (upholding 120 day period); also Castner v. City of Oakland, 129 Cal. App. 3d 94 (upholding a one year period). The City of Atascadero would therefore be wise to establish the more reasonable time periods for amortization as proposed, to minimize the total harmful secondary effects to be suffered. Sec. 5-10.09. Permit required. The licensing provisions within the Atascadero ordinance already requires many different types of information to be provided by the business owner. The proposed amendments would require disclosure of some additional information including inter alfa disclosure of prior criminal history. Although Courts have split in their decisions regarding the various information licensors have been allowed to require from applicants, they have found that it is a proper exercise of the police power to define the qualifications for one who engages in an occupation affecting the public health, safety morals, or welfare." Broadway Books, Inc v. Roberts (E.D. Tenn. 1986) 642 F. Supp. 486, 492. The basic legal test governing such disclosures is that there must be "a relevant correlation' or 'substantial relation' between the government interest and the information required to be disclosed." Buckley v. Valeo (1976) 424 U.S. 1, 64; See also Ellwest Stereo Theater v. Boner (M.D. Tenn. 1989) 718 F. Supp. 1553, 1566 Disclosure of prior criminal history coupled with a provision that a prior conviction within a particular time frame will bar the applicant from receiving the permit or license has been upheld in many areas of the country. Airport Book Store, Inc. v. Jackson (1978) 242 Ga 214, 248 S.E. 2d 623; Borrago v. City of Louisville (W.D. Ky. 1978) 456 F. Supp. 30; Postscript Enterprises v. City of Bridgeton (E.D. Mo. 1988) 699 F. Supp. 1393, affd,(8th Cir. 1990) 905 F. 2d 223; and Broadway Books, Inc., supra, 642 F. Supp. 486. As the Broadway Court emphatically noted "the city's legitimate goal of crime prevention makes it clear that it has a substantial governmental interest in insuring that the persons who operate these establishments also do not have criminal records. There has been no showing that these requirements would chill plaintiffs First Amendment rights." Id, 642 F. Supp. at 493. Atascadcro City Council April 6, 1998 Page 3 Sec. 5-10.11. Issuance of Permit. The proposed amendments would include the requirement that any permit issued shall state on its face a clear warning, that the SOB whether permitted or not, may be subject to prohibitions against public nudity and indecency pursuant to the United States Supreme Court decision in Barnes v. Glen Theater, Inc., (1991) 501 U.S. 560. Additional amendments add, clarify and harmonize the duty of the city manager to deny an application for a permit for non-payment of city taxes, prior suspension or revocation of a permit and conviction of specified criminal acts. See authorities and discussion under Sec. 5- 10.09 supra. Each of the Atascadero ordinance requirements for issuance or denial of a permit are precise standards capable of objective measurement and do not vest "unbridled discretion" on the part of the licensing official. Burton v. Municipal Court (1968) 68 Cal. 2d 684; See also City of Imperial Beach v. Palm Ave. Bookstore, (1981) 115 Cal. App. 3d 134, 139; Dease V. City of Anaheim (C.D. Cal. 1993) 826 F. Supp. 336; Smith v. County of Los Angeles, (1994) 24 Cal. App. 4th 990, 29 Cal. Rptr. 2d 680, rev'd denied (1994). Sec. 5-10.15. Suspension of Permit. Even though there is language elsewhere in the ordinance that refers to or contemplates the intermediary sanction of the suspension of a permit prior to the more drastic remedy of revocation, the enabling provision itself was mistakenly omitted altogether. This amendment would correct that oversight. Sec. 5-10.16 Revocation of Permit. The grounds for revocation of a permit usually reflect the grounds for suspension or denial. Thus the proposed amendments to this section would include knowingly operating a SOB during a period when the permittee's permit was suspended and for conviction of specified criminal acts as previously discussed. SEC. 5-10.18. Transfer of permit. Amendment would require a transferee to file a permit application and precludes transfers while suspension or revocation proceedings are pending. Section 5-10.19. Sexually Oriented Business Employee License. A provision requiring employees to be licensed and provide the relevant information necessary to a proper exercise of police power is also essential. This amendment would define the qualifications of those persons, who as a potential employee of an SOB, would Atascadero City Council April 6, 1998 Page 4 engage in an "occupation affecting the public health, safety morals, or welfare." Broadway Books, Inc v. Roberts (E.D. Tenn. 1986) 642 F. Supp. 486, 492. The basis and .authority for such disclosures is set forth in Sec. 5-10.09 supra. The requirement that an application for license be denied (Sec. 5-10.19(b) (12) (i) for fraud or misrepresentation in the application process is appropriate. See Nevada Entertainment Industries, Inc. v. City of Henderson, Nevada (9th Cir. May 4, 1994) (Table of Unpublished Dispositions), full text at 1994 WL 168264, (on rehearing, District Court's judgment for city affirmed on the merits, regarding fraudulent application), prior opinion dismissing action on abstention grounds, at 8 F.3d 1348 (9th Cir 1993), withdrawn upon granting of rehearing. Sec. 5-10.30. PROHIBITION OF DISTRIBUTION OF SEXUAL DEVICES.. There is sufficient information available which demonstrates that sexual paraphernalia present significant public health and safety concerns because of the manner in which they are commonly used. Transmission of diseases, including HIV, due to use of the same sexual device by more than one person and physical injuries, including bleeding, caused by sado- masochistic use of such devices is of particular concern. The proposed amendment does not prohibit the use of sexual device paraphernalia only its commercial distribution. Thus, it does not create a new standard of sexual conduct nor does it purport to criminalize sexual activity which is not criminal under state law. EWAP, Inc., 158 Cal Rptr 579. There is no fundamental right, such as privacy or equal protection, involved in the commercial distribution of sexual paraphernalia. Other states have passed regulations proscribing their distribution. For example Georgia passed-a statute making it an offense to promote these "obscene devices" and made them contraband as obscene per se. Three cases upholding the law and convictions thereunder were appealed to the United States Supreme Court, all of which were dismissed for want of a substantial federal question. See, Sewell v. State, (1977) 228 Ga. 495, 233 S.E.2d 187, appeal dismissed, (1978)435 U.S. 982; Simpson v. State, (1978) 144 Ga. App. 657, 242 S.E.2d 265, appeal dismissed (1978), 439 U. S. 887; Dobbs v. State, (1978) 145 Ga. App. 14, 243 S.E.2d 275, appeal dismissed, (1978) 439 U.S. 899. It should be noted that such a dismissal is a decision on the merits and acts as an affirmance of the validity of the law 'involved: Hicks, Dist. Attorney of Orange County v. . Miranda, DBA Walnut Properties, (1975) 422 U.S. 332 The.remaining amendments namely - Sec. 5-10.31. SEVERABILITY, Sec. 5-10.32. CONFLICTING ORDINANCE REPEALED, Sec. 5-10.33. EFFECTIVE DATE, and Sec. 5-10.34. POSTING, are simple housekeeping type provisions. r Atascadcro City Council April 6, 1998 Page 5 As stated at the outset, it is well established that sexually oriented businesses by their very nature cause serious harms to any community. Increased crime, illicit drug use, public health and safety hazards, devaluing of nearby property, lower tax revenue, noise, litter, traffic congestion, and cruising are just some of the adverse effects demonstrated by cities throughout the United States in various land use studies. Copies of these studies as well as a helpful legal manual referencing a model ordinance and compiling authorities cited herein are available through the National Law Center in Fairfax, Virginia (703-691-4626). The NLC model ordinance was used by the City of Atascadero for the initial provisions enacted, as well as the proposed. amendments discussed above. Atascadero is entitled to rely on the experiences of other cities, and in particular on the detailed findings of their land use studies, as noted by Chief Justice Rehnquist in his majority opinion in City of Renton v. Playtime Theaters, Inc.,(1986) 475 U.S. 41. It therefore makes good sense for our community leaders to amend our current ordinance in light of this existing knowledge and concomitant legal precedent. If I can answer any questions or concerns, or further assist in any way possible, please do not hesitate to ask. Sincerely, LAW OFFICE OF CURTIS L. CLARK by: Curtis L. Clark CLC/grc Enclosures (Proposed) ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ATASCADERO, CALIFORNIA AMENDING'CHAPTER 10 - SEXUALLY ORIENTED BUSINESSES The City Council of the City of Atascadero, State of California, does hereby ordain: Sec. 5-10.01 [no change in language] Sec. 5-10.02 [no change in language] Sec. 5-10.03 [no change in language] Sec. 5-10.04 [no change in language] Sec. 5-10.05 [no change in language] Sec. 5-10.06 Regulations governing existing sexually oriented businesses (shall be amended as follows): (a) Any sexually oriented business lawfully operating on the effective date of the ordinance codified in this chapter that is in violation of Sections 5-10.03 and.5-10.05 shall be deemed a nonconforming use. A nonconforming use will be permitted to continue for a period of five (5) year one (1) year, with a possible extension of two (2) years one (1) year 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 nonconforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30)days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except to a conforming use. If two (2) or more sexually oriented businesses are within one thousand (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 nonconforming, except as provided in Section 5- 10.03(b). (b) A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming 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 one thousand (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 or 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 5-10.10 within thirty (30) days of the effective date of the ordinance codified in this chapter. Any establishment, existing prior to the effective date of the ordinance codified in this chapter, shall comply with the regulations pertaining to Sections 5-10.20 and 5-10.22, within sixty (60) days of the effective date of the ordinance codified in this chapter,and all other applicable permit regulations within thirty (30) days of the effective date of the ordinance codified in this chapter. (Ord. 298 § 6, 1998) Sec. 5-10.07 [no change in language] Sec. 5-10.08 [no change in language] See. 5-10.09 Permit required. (shall be amended to read as follows:) (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 proposed sexually oriented business for which a permit is being applied for complies with all locational requirements of Sections 5-10.03, 5-10.05 and 5-10.06, all applicable zoning laws and/or regulations now-in effect or as amended or enacted subsequent to the effective date of the ordinance codified in this chapter in the City and the City Comprehensive Plan. (c) The San Luis Obispo County Sheriffs Department is responsible for providing information on whether an applicant has been convicted of a specified criminal act during the time period set forth. ;2 (d) The City's Code Enforcement Office is responsible for inspecting a proposed, permitted or non-permitted sexually oriented business in order to ascertain whether it is in compliance with applicable statutes and ordinances. (e) 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. (f) The completed application shall contain the following information and shall be accompanied by the following documents: (1) If the applicant is: (i) An individual, the individual shall state his/her legal name and any aliases and submit satisfactory proof that he/she is eighteen (18) years of age, (ii) 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, (iii) 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 the sexually oriented business' fictitious name; (3) Whether the applicant or any of the other individuals listed pursuant to Section 5-10.09 of this Ordinance has, within the two (2) or five (5) year-period as specified in Section 5-10.11 immediately preceding the date of the application, been convicted of a specified criminal act, and, if so,•the specified criminal act involved, the date of conviction and the place of conviction. (4) Whether the applicant or any of the other individuals listed pursuant to Section 5-10.09 of this Ordinance has had a previous permit under Ordinance or other similar sexually oriented business ordinances from another city or county denied,suspended or revoked, including the name and location Iof the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant or any other individuals listed pursuant to Section 3 5-10.09 has been-a partner in a partnership or an officer, director or principal stockholder of a corporation that is permitted under this Ordinance whose permit has previously been denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation. (5) Whether the applicant or any of the other individuals listed pursuant to Section 5-10.09 of this Ordinance holds any other permits and/or licenses under this Ordinance or other similar sexually oriented business ordinances from another city or county and, if so, the names and locations of such other permitted businesses. (6) The single classification of permit for which the applicant is filing; (7) The location of the proposed sexually oriented business, including a legal description of the property, street address, and telephone number(s), if any; (8) The applicant's mailing addresses and residential address; (9) A recent photograph of the applicant (s). (10) The applicant's driver's permit number,Social Security number,and/or his/her State or federally issued tax identification number. (11) 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; (12) A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a California registered land surveyor depicting the property lines and the structures containing any established existing uses regulated by this Ordinance within 1000 feet of the property to be certified; the property lines of any established religious institution/synagogue, school, or public park or recreation area within 1000 feet of the to be certified; and the property tines of any residentially zoned area or residential property within 1000 feet of the property to be certified. For purposes of this Section, A use shall be considered existing or established if it is in existence at the time an application is submitted. Section 5-10.03(b) is excepted from this requirement. (13) 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 (10) percent 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 4 to operate such a-busincss, cacti individual having a ten (10) percent or greater interest in the corporation must sign the application for a permit as applicant; (14) 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 2$ 5-10.18 et seq. (g) 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. (h) In the event that the City Manager or his/her designee determines or learns at an 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.) (i) The applicant must be qualified according to the provisions of this ordinance and the premises must be inspected and found to be in compliance with health, fire and building codes and laws. (j) The applicant shall be required to pay a nonrefundable application fee of one hundred dollars ($100.00) at the time of filing an application under this section. (k) Prior to obtaining any permit.or license to operate any sexually oriented business defined in this chapter, 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 Sections 5-10.05 and 5-10.06. (1) 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. (m) By applying for a permit under_this Ordinance, the applicant shall be deemed to have consented to the provisions of this Ordinance and to the exercise by the City Manager or his/her designee, the San Luis Obispo County Sheriffs Department and all other City agencies charged with enforcing the laws, ordinances and codes applicable in the City of their respective responsibilities under this Ordinance. 5 i (n) ` The applicant shall be required to provide the City with the names of any and all employees who are required to be licensed pursuant to Section 5-10.19 of this Ordinance. This shall be a continuing requirement even after a permit is granted or renewed. (Ord. 298 § 9, 1998) Sec. 5-10.10. [no change in language] Sec. 5-10.11. Issuance of Permit. (shall be amended to read as follows:) (a) The City Manager or his/her designee shall grant or deny an application for a permit within thirty (3) 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 reason(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 subsection(c) of this section 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. The permit shall also indicate that the sexually oriented business whether permitted or not may be subject to prohibitions against Public. Nudity and Indecency pursuant to the United States Supreme Court decision in Barnes v. Glen Theater,Inc., 501 U.S. 560 (1991). The permit shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it can be read easily at any time. (c) Denial of Application for Permit. (1) The City Manager or his/her designee shall deny the application for any of the following reasons: (i) An applicant is under eighteen (18) years of age; (ii) An applicant or an applicant's spouse is overdue on his/her payment to the City of taxes, fees, fines, or penalties assessed against him/her or imposed upon him/her in relation to a sexually oriented business. 6 (iiir An applicant is residing with a person who has been denied a permit by the City to operate a sexually oriented business within the preceding twelve (12) months, or residing with a person whose permit to operate a sexually oriented business has been revoked within the preceding twelve (12) months. (iv) 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; (v) 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; (vi) The application or permit fees required by this chapter have not been paid; (vii) An applicant of the proposed business is in violation of, or is not in compliance with, any of the provisions of this chapter, including but not limited to, the zoning locational requirements for a sexually oriented business under Sections 5-10.03, 5-10.05 and 5-10.06; (viii) The granting of the application would violate a statute, ordinance or court order. (ix) The applicant has a permit under this Ordinance which has been suspended or revoked. (x) An applicant has been convicted of a "specified criminal" act for which: (1) less than two (2)years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a misdemeanor offense for the "specified criminal" acts which are sexual crimes against children, sexual abuse, rape or crimes connected with another sexually oriented business including, but not limited to, distribution of obscenity or material harmful to minors, prostitution, pandering, or tax violations; (2) less than five (5)'years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a felony offense, for the "specified criminal" acts which are sexual crimes against children, sexual 7 abuse, rape or crimes connected with another sexually oriented business including, but not limited to, distribution of obscenity or material harmful to minors, prostitution, pandering, or tax violations; (3) less than five (5)years have elapsed since the date of conviction or the date of release from confinement whichever is the later date, if the conviction are two or more misdemeanor offenses, for "specified criminal" acts which are sexual crimes against children, sexual abuse, rape or crimes connected with another sexually oriented business including, but not limited to, distribution of obscenity or material harmful to minors, prostitution, pandering, or tax violations; offenses occurring within any twenty-four month period; (4) the fact that conviction is being appealed shall have no effect on disqualification of the applicant; (5) an applicant who has been convicted of the above described "specified criminal" acts may qualify for a sexually oriented business permit only when the time period required in the above Section 5-10.11(x) has elapsed. (xi) An applicant knowingly has in his or her employ, an employee who does not have a valid license as required in Section 5-10.19 of this Ordinance. (2) If the City Manager or his/her designee denies the application, he/she shall notify the applicant of the denial and state the reason(s) for the denial. (3) If a person applies for a permit for a particular location within 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. (Ord. 298 § 11, 1998) Sec. 5-10.12. [no change in language] Sec. 5-10.13. [no change in language] Sec. 5-10.14. [no change in language] 8 (SECTION PREVIOUSLY IDENTIFIED AS "REVOCATION OF PERMIT" - AMENDED AND RENUMBERED TO SEC. 5-10.16. THE NEW SEC. 5-10.15 SHALL READ AS FOLLOWS:) Sec. 5-10.15. Suspension of Permit. (a) The City Manager or his/her designee, shall suspend a permit for a period of not to exceed thirty (30) days if he/she determines that a permittee, or an employee of a permittee, has: (1) Violated or is not in compliance with any section of this ordinance; or (2) Been under the influence of alcoholic beverages or drug, or under the combined influence of any alcoholic beverage and drug, while working in the sexually oriented business premises; or (3) Refused to allow an inspection of sexually oriented business premises as authorized by this Ordinance; or (4) Knowingly permitted gambling by any person on the sexually oriented business premises; or (5) Operated the sexually oriented business in violation of a building, fire, health, or zoning statute, code, ordinance or regulation, whether federal, state or local, said determination being based on investigation by the division, department or agency charged with enforcing said rules or laws. In the event of such statute, code, ordinance or regulation violation, the City Manager or his/her designee, shall promptly notify the permittee of the violation and shall allow the permittee a seven (7) day period in which to correct the violation. If the permittee fails to correct the violation before the expiration of the seven (7) day period, the City Manager or his/her designee shall forthwith suspend the permit and shall notify the permittee of the suspension. (6) Engaged in permit transfer contrary to Section 5-10.18 -of this Ordinance: In the event that the City Manager or his/her designee suspends a permit on the ground that a permittee engaged in a permit transfer contrary to Section 5-10.18 of this Ordinance, the City Manager or his/her designee shall forthwith notify the permittee of the suspension. The suspension shall remain in effect until the applicable section of this Ordinance has been satisfied. (7) Operated the sexually oriented business in violation of the hours of operation as delineated in Section 5-10.22. 9 (8)" Knowingly employs a person who does not have a valid license as required in Section 5-10.19. (b) The suspension shall remain in effect until the violation of this statute, code, ordinance or regulation in question has been corrected. Sec. 5-10.16 Revocation of Permit. (renumbered and amended as follows:) (a) The City Manager or his/her designee shall revoke a permit if a cause of suspension in Section 5-10.15 of this Ordinance occurs and the permit has previously 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 t;he material submitted during the application process that tended to 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 or alcohol 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 knowingly operated the sexually oriented business during a period of time when the permittee's permit was suspended; or (5) A permittee has been convicted of a "specified criminal act" for which the time period required in Section 5-10.11(x) of this Ordinance has not elapsed;or (6) On two or more occasions within a twelve (12) month period, a person or persons committed an offense, occurring in or on the permitted premises, constituting a specified criminal act for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed. The fact that a conviction is being appealed shall have no effect on the revocation of the permit; or (7) A permittee is convicted of tax violations for any taxes or fees related to a sexually oriented business; or 10 (8)" 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; or (9) A permittee has been operating more than one sexually oriented business under a single roof except as provided in Section 5-10.03(b). (c) When the City Manager or his/her designee revokes a permits, 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 5-10.16 of this Ordinance has been corrected, the application .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 5-10.16 of this. Ordinance, an applicant may not be granted another permit until the number of years required under Section 5-10.16 have elapsed. [FORMER SEC. 5-10.16 RENUMBERED TO SEC. 5-10.17]. [no change in language] [FORMER SEC. 5-10.17 RENUMBERED TO SEC. 5-10.18, AND SHALL BE AMENDED TO READ AS FOLLOWS:]. SEC. 5-10.18. 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/her permit to another person unless and until such other person satisfies the following requirements: 1. Obtains an amendment to the permit from the City Manager or his/her designee, which provides that he/she is now the permittee, which amendment may be obtained only if he/she has completed and properly filed an application with the City Manager or his/her designee,setting forth the information called for under Section 5-10.11 of this Ordinance in the application; and 2. Pays a transfer fee of twenty percent (20%) of the annual permit fee set by this Ordinance. (c) No permit may be transferred when the City Manager or his/her designee has notified the permittee that suspension or revocation proceedings have been or will be brought against the permittee. II (d) A permittee shall not transfer his permit to another location. (e) 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 PREVIOUSLY IDENTIFIED AS' "REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS IN VIDEO BOOTHS" - RENUMBERED.TO SEC. 5-10.20. THE NEW SEC. 5-10.19 SHALL READ AS FOLLOWS:] Section 5-10.19. Sexually Oriented Business Employee License. (a) Each individual to be employed in a sexually oriented business, as defined in Section 5-10.2 of this Ordinance,who engages in the services rendered by a nude model studio, escort or escort agency, sexual encounter establishment, massage parlor, or a live performer or entertainer shall be required to obtain a Sexually Oriented Business Employee License. Each applicant shall pay a permit fee of twenty-five dollars ($25.00). Said fee is to cover reasonable administrative costs of the licensing application process. (b) Before any applicant may be issued a Sexually Oriented Business Employee License, the applicant shall submit on a form to be provided by the City Manager or his/her designee the following information: (1) The applicant's name or any other names (including "stage" names) or aliases used by the individual; (2) Age, date, and place of birth; (3) Height, weight, hair and eye color; (4) Present residence address and telephone number; (5) Present business address and telephone number; (6) Driver's license or other identification number; (7) Social Security number; and (8) Acceptable written proof that the individual is at least eighteen (18) years of age. (9) Attached to the application form as provided above, a color photograph of the applicant clearly showing the applicant's face, and the applicant's 12 fingerprints on a form provided by the Atascadero Police Department. Any fees for the photographs and fingerprints shall be paid by the applicant. (10) A statement detailing the license or permit history of the applicant for the five (5) years immediately preceding the date of the filing of the application, including whether such applicant previously operating or seeking to operate, in this or any other county, city, state, or country has ever had a license, permit, or authorization to do business denied, revoked, or suspended, or had any professional . or vocational license or permit denied, revoked or suspended. In the event of any such denial, revocation, or suspension, state the date, the name of the issuing or denying jurisdiction, and describe in full the reasons for the denial, revocation or suspension. A copy of any order of denial, revocation or suspension shall be attached to the application. (11) Whether the applicant has been convicted of a "specified criminal act" as defined in Section 5-10.11(j) of this Ordinance. This information shall include the date, place and nature of each conviction or plea of nolo contendere and shall identify the convicting jurisdiction. (12) The City Manager or his or her designee shall refer the Sexually Oriented Business Employee License Application to the Atascadero Police Department for an investigation to be made of such information as is contained on the application: The application process shall be completed within ten (10) days from the date the completed application is filed. After the investigation, the City Manager or his/her designee shall issue a license unless the report from the investigating police department finds that one or more of the following findings is true: (i) That the applicant has knowingly made any false, misleading or- fraudulent statement of a material fact in the application for a license, or in any report or record required to be filed with the investigating police department or other department of the City; (ii) That the applicant is under eighteen (18) years of age; (iii) That the applicant has been convicted of a "specified criminal act" as defined in Section 5-10.11(j) of this Ordinance; (iv) That the Sexually Oriented Business Employee License is to be used for employment in a business prohibited by local or state law, statute, rule or regulation, or prohibited by particular provisions of this Ordinance; 13 (v) That the applicant has had a Sexually Oriented Business Employee License revoked by the City within two (2) years of the date of the current application. (c) Renewal of license: (1) A license granted pursuant to this Section shall be subject to annual renewal by the City Manager or his/her designee upon the written application of the applicant and a finding by the City Manager or his/her designee and the Atascadero Police Department that the applicant has not been convicted of any "specified criminal act" as defined in Section 5-10.11(j) of this Ordinance or committed any act during the existence of the previous license period which would be grounds to deny the initial permit application. (2) The renewal of the license shall be subject to the payment of a fee as set by a resolution of the City Council. Sec. 5-10.20. [FORMERLY DESIGNATED AS SEC. 5-10.18] [no change in language] Sec. 5-10.21. [FORMERLY DESIGNATED AS SEC. 5-10.19] [no change in language] Sec. 5-10.22. [FORMERLY DESIGNATED AS SEC. 5-10.20] [no change in language] Sec. 5-10.23. [FORMERLY DESIGNATED AS SEC. 5-10.21] [no change in language] Sec. 5-10.24. [FORMERLY DESIGNATED AS SEC. 5-10.22] [no change in language] Sec. 5-10.25. [LIVE ENTERTAINMENT ORDINANCE?] Sec. 5-10.26. [FORMERLY DESIGNATED AS SEC. 5-10.23] [no change in language] Sec. 5-10.27. [FORMERLY DESIGNATED AS SEC. 5-10.24] [no change in language] Sec. 5-10.28. [FORMERLY DESIGNATED AS SEC. 5-10.25] [no change in language] Sec. 5-10.29. IMMUNITY FROM PROSECUTION. The city and its designee, the.San Luis Obispo County Sheriffs Department, and all other departments and agencies, and all other City officers, agents and employees, charged with enforcement of State and local laws and codes shall be immune from prosecution, civil or criminal, for reasonable, good faith trespass upon a sexually oriented business while acting within the scope of authority conferred by this Ordinance. 14 Sec. 540.30. PROHIBITION OF DISTRIBUTION OF SEXUAL DEVICES. (a) It is unlawful for anyone to distribute, for commercial purposes, sell or offer for sale any device, instrument or paraphernalia designed or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others. (b) Such devices, instruments or paraphernalia include, but are not limited to: phallic shaped vibrators, dildos, muzzles, whips, chains, bather restraints, racks, non-medical enema kits,body piercing implements (excluding earrings or other decorative jewelry) or other tools of sadomasochistic abuse. (c) A violation of this section is a misdemeanor punishable by a fine of up to One Thousand Dollars ($1000) and six (6) months incarceration or both. Sec. 5-10.31. SEVERABILITY. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining section, subsection and clauses shall not be effected thereby. Sec. 5-10.32. CONFLICTING ORDINANCE REPEALED. All ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Sec. 5-10.33. EFFECTIVE DATE. This Ordinance shall be in full force and effect from and after Sec. 5-10.34. POSTING. The City Clerk shall within fifteen (15) days after the passage of this Ordinance, cause it to be posted in at least the three (3) public places designated by resolution of the City Council; shall certify to the adoption and posting of this Ordinance; and shall cause this Ordinance and its certification, together with proof of posting, to be entered in the Book of Ordinances of this City. 15