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HomeMy WebLinkAboutOrdinance 380 CERTIFICATION I, Marcia McClure Torgerson, City Clerk of the City of Atascadero, hereby certify that the foregoing is a true and correct original of Ordinance No. 380 adopted by the Atascadero City Council at a regular meeting thereof held on March 27, 2001, and that it has been duly published pursuant to State Law. DATED: --L1--d Marcia McClure Torgerson City Clerk City of Atascadero, California ORDINANCE NO. 380 AN ORDINANCE ADDING TITLE 9 CHAPTER 16 TO THE CITY OF ATASCADERO MUNICIPAL CODE PERTAINING TO ZONING REGULATIONS APPLICABLE TO ADULT-ORIENTED BUSINESSES AND AMENDING TITLE 5 CHAPTER 10 OF THE ATASCADERO MUNICIPAL CODE RELATING TO REGULATION OF ADULT ORIENTED BUSINESSES. The Council of the City of Atascadero does ordain as follows: SECTION 1. FINDINGS. The City Council of the City of Atascadero hereby finds that: (a) The City Council, in adopting this ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Adult Oriented Businesses in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington(1989); Austin, Texas (1986); Oklahoma City, Oklahoma(1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977). The City Council finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of Adult Oriented Businesses, and more specifically finds that these studies provide convincing evidence that: (1) Adult Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas. (2) The proximity of Adult Oriented Businesses to sensitive land uses tends to result in the blighting and deterioration of the areas in which they are located. (3) The proximity and concentration of Adult Oriented Businesses adjacent to other commercial and tourist-oriented uses can cause other businesses and uses to move elsewhere. (4) There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by Adult Oriented Businesses, including but not limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish convincing evidence that Adult Oriented Businesses which are not regulated as to permissible locations often have a deleterious effect on nearby businesses in residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values. (b) Based on the foregoing, the City Council of the City of Atascadero finds and determines that special regulation of Adult Oriented Businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increase in crime rates or to the blighting City of Atascadero Ordinance No.380 Page 2 or deterioration of the areas in which they are located or surrounding areas. The need for such special regulations is based upon the recognition that Adult Oriented Businesses have serious objectionable operational characteristics. It is the purpose and intent of these special regulations to prevent the concentration of Adult Oriented Businesses and thereby prevent such adverse secondary side effects. (c) The locational requirements established by this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected Adult Oriented Businesses in the City of Atascadero, and a sufficient reasonable number of appropriate locations for Adult Oriented Businesses are provided by this ordinance. The City Council finds, in part based upon its understanding of documents and judicial decisions available to the public, that the City Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication. The City Council takes note of the proliferation of adult material on the internet and its availability as an alternative avenue of communication. The City Council also takes note that internet access is available at nearby public libraries and at coffee shops. The City Council also considers and relies on published decisions examining the proliferation of communications on the internet. (Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2.d 874 (1997) [the principle channel through which many Americans now transmit and receive sexually explicit communication is the internet]; Anheuser-Busch v. Schmoke, 101 F. 3d 325, 329 (4th Cir. 1996) cert, denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the internet is one available channel of communication]; U.S. v. Hockinas, 129 F.3d 1069 (91h Cir. 1997); see also U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996) cert. Denied 519 U.S. 820 [recognizing the internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].) The emergence of the internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested persons in every community with a mere keystroke. An adult business no longer has to be "actually" physically located in a city to be available in the community. (d) In developing this ordinance, the City Council has been mindful of legal principles relating to regulation of Adult Oriented Businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendments of the United States and California Constitutions, but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of Adult Oriented Businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of Adult 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); Barnes v. Glenn Theater, 501 U.S. 560 (1991); United States Court of Appeals 9th Circuit decisions, including but not limited to: Topanga Press, et al. v. City of Los Ani, 989 F.2d 1524 (1993); several California cases including but not limited to: City of National City v. Wiener, 3 Cal. 4th 832 (1993); People v. Superior Court (Lucero) 49 Cal. 3d 14 (1989); and City of Vallejo v. Adult Books, et al., 167 Cal. App. 3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F. 2d 1255, Hang On, Inc. v. Arlineton (5th Cir. 1995) 65 F. 3d 1248, Mitchell v. Commission on Adult City of Atascadero Ordinance No.380 Page 3 Entertainment (3rd Cir. 1993) 10 F. 3d 123, International Eateries v. Broward County (11th Cir. 1991) 941 F. 2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F. 2d 1074. (e) The City Council of the City of Atascadero also finds that locational criteria alone do not adequately protect the health, safety, and general welfare of the citizens of the City of Atascadero, and thus certain requirements with respect to the ownership and operation of Adult Oriented Businesses are in the public interest. In addition to the findings and studies conducted in other cities regarding increases in crime rates, decreases in property values and the blighting of areas in which such businesses are located, the City Council also takes legislative notice of the facts recited in the case of Kev. Inc. v. Kitsap County, 793 F. 2d 1053 (1986), regarding how live adult entertainment results in secondary effects such as prostitution, drug dealing, and other law enforcement problems. (f) The City Council finds the following, in part based upon its understanding of the documents and judicial decisions in the public record: (1) Evidence indicates that some dancers, models and performers, and other persons who publicly perform specified sexual activities or publicly display specified anatomical parts in Adult Oriented Businesses (collectively referred to as 'performers') have been found to engage in sexual activities with patrons of Adult Oriented Businesses on the site of the Adult Oriented Business; (2) Evidence has demonstrated that performers employed by Adult Oriented Businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to observe and participate with the performers in live sex shows; (3) Evidence indicates that performers at Adult Oriented Businesses have been found to engage in acts of prostitution with patrons of the establishment; (4) Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as a location for engaging in unlawful sexual activity; (5) As a result of the above, and the increase in incidents of AIDS and Hepatitis B, which are both sexually transmitted diseases, the City has a substantial interest in adopting regulations which will reduce, to the greatest extent possible, the possibility for the occurrence of prostitution and casual sex acts at Adult Oriented Businesses. (g) Zoning, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the community of Atascadero and to help assure that all operators of Adult Oriented Businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects which naturally accompany the operation of such businesses. (h) The City Council of the City of Atascadero recognizes the possible harmful effects on children and minors exposed to the effects of such Adult Oriented Businesses and the City of Atascadero Ordinance No.380 Page 4 deterioration of respect for family values, and the need and desire of children and minors to stay away from and avoid such businesses, which causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses; and the city Council desires to minimize and control the adverse secondary side effects associated with the operation of Adult Oriented Businesses and thereby protect the health, safety, and welfare of the citizens of Atascadero; protect the citizens from increased crime; preserve the quality of life; preserve 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 sexually transmitted diseases. (i) It is not the intent of the City Council of the City of Atascadero in enacting this ordinance, or any provision thereof, to condone or legitimize the distribution of obscene material, and the City of Atascadero recognizes that state law prohibits the distribution of the obscene materials and expects and encourages law enforcement officials to enforce state obscenity statutes against such illegal activities in the City of Atascadero. 0) Nothing in this ordinance is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any.statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter or the exhibition or public display thereof. (k) In prohibiting public nudity in Adult Oriented Businesses, the City Council does not intend to proscribe the communication of erotic messages or any other communicative element or activity, but rather only to prohibit public nudity due to the secondary impacts associated with such public nudity; and (1) The City Council also finds, as a wholly independent basis, that it has a substantial public interest in preserving societal order and morality, and that such interest is furthered by a prohibition on public nudity; and (m) While the City Council desires to protect the rights conferred by the United States Constitution to Adult Oriented Businesses, it does so in a manner that ensures the continued and orderly development of property within the City and diminishes, to the greatest extend feasible, those undesirable secondary effects which the aforementioned studies have shown to be associated with the development and operation of Adult Oriented Businesses; and (n) In enacting a nudity limitation, the City declares that the limitation is a regulatory licensing provision and not a criminal offense. The City has not provided a criminal penalty for a violation of the nudity limitation. The City adopts such a limitation only as a condition of issuance and maintenance of an Adult Oriented Business permit issued pursuant to the City Code; and (o) The City Council finds that preventing the exchange of money between performers and patrons also reduces the likelihood of drug and sex transactions occurring in Adult Oriented Businesses; and City of Atascadero Ordinance No.380 Page 5 (p) Requiring separations between performers and patrons reduces the likelihood that such persons will negotiate narcotics sales and/or transact sexual favors within the Adult Oriented Business. (q) Enclosed or concealed booths and dimly-lit areas within Adult Oriented Businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmission of disease. Requirements that all indoor areas be open to view by management at all times, and that adequate lighting be provided are necessary in order to reduce the opportunity for, and therefore the incidence of illegal conduct within Adult Oriented Businesses, and to facilitate the inspection of the interior of the premises thereof by law enforcement personnel. (r) The City Council enacted a comprehensive sexually oriented business ordinance in 1996. The effective date of that ordinance was April 11,1996. That ordinance allowed uses of real property existing on or before its effective date to be regarded as a non-conforming use and were allowed to continue until April 11,2001. This ordinance shall not be interpreted to extend the time of allowed continuance beyond that date unless an extension is granted pursuant to Title 9 Chapter 16.105 below, except for the purpose of applying for an extension of time as hereinafter provided. SECTION 2. AMENDMENT OF CODE. Chapter 16 entitled "Adult Oriented Businesses" is hereby added to Title 9 of the Atascadero Municipal Code to read as follows: ARTICLE 9.16. ADULT ORIENTED BUSINESSES. SEC. 9.16.101. PURPOSE. It is the intent of this article to prevent community wide adverse economic impacts, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of Adult Oriented Businesses in close proximity to each other or proximity to other incompatible uses such as schools for minors, churches, and residentially zoned districts or uses. The City Council finds that it has been demonstrated in various communities, which demonstrations the City Council finds are relevant to the City of Atascadero, that the concentration of Adult Oriented Businesses causes and increase in the number of transients in the area, and an increase in crime, and in addition to the effects described above can cause other businesses and residents to move elsewhere. It is, therefore, the purpose of this article to establish reasonable and uniform regulations to prevent the concentration of Adult Oriented Businesses or their close proximity to incompatible uses, while permitting the location of Adult Oriented Businesses in certain areas. SEC. 9.16.102. DEFINITIONS. (a) Establishment of an Adult Oriented Business. As used herein, to "establish" an Adult Oriented Business shall mean and include any of the following: City of Atascadero Ordinance No.380 Page 6 (1) The opening or commencement of any Adult Oriented Business as a new business; (2) The conversion of an existing business, whether or not an Adult Oriented Business; to any Adult Oriented Business defined herein; (3) The addition of any of the Adult Oriented Businesses defined herein to any other existing Adult Oriented Business; or (4) The relocation of any such Adult Oriented Business. (b) Specified anatomical areas. As used herein, "specified anatomical areas" shall mean and include any of the following: (1) Less than completely and opaquely covered , and/or simulated to be reasonably anatomically correct, even if completely and opaquely covered: (i) human genitals or pubic region; (ii) buttocks anus; and (iii) female breast below a point immediately above the top of the areola; (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered; (c) Specified sexual activities. As used herein, "specified sexual activities" shall mean and include any of the following: (1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast; (2) Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy; (3) Masturbation, actual or simulated; (4) Excretory functions as part of or in connection with any of the other activities described in subdivision(1)through(3) of this subsection. (d) Adult arcade. "Adult Arcade" shall mean a business establishment to which the public is permitted or invited and where coin, card or slug operated or electronically, electrically or mechanically controlled devices, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing "specified sexual activities" or "specified anatomical areas." Such devices shall be referred to as "adult arcade devices." (e) Adult Retail Store. The term "adult retail store" is a business establishment having as a regular and substantial portion of its stock in trade, "adult City of Atascadero Ordinance No.380 Page 7 oriented material." (f) Adult Booth/Individual Viewing Area. The term "adult booth/individual viewing area" shall mean a partitioned or partially enclosed portion of an adult business used for any of the following purposes: (1) Where a live or taped performance is presented or viewed, where the performances and/or images are distinguished or characterized by their emphasis on matter depicting, describing, or relating to "specified sexual activites" or "specified anatomical areas"; (2) Wher"adult arcade devices" are located. (g) Adult Business. The term "adult business" shall mean (1) A business establishment or concern that as a regular and substantial course of conduct operates as an adult retail store, adult motion picture theater, adult arcade, adult cabaret, adult motel or hotel, adult modeling studio: or (2) A business establishment or concern which as a regular and substantial course of conduct offers, sells or distributes "adult oriented material' or "sexually oriented merchandise," or which offers to its patrons materials, products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing, or relating to "specified sexual activities" or specified anatomical areas" but not including those uses or activities which are preempted by State law. (h) Adult Cabaret. "Adult cabaret"shall mean a business establishment (whether or not serving alcoholic beverages) that features "adult live entertainment." (i) Adult Hotel/Motel. "Adult hotel/motel' shall mean a "hotel' or "motel' as defined in the Municipal Code tht is used for presenting on a regular an substantial basis images through closed circuit television, cable television, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices that are distinguished or characterized by the emphasis on matter depicting or describing or relating to "specified sexual activities" or"specified anatomical areas." (j) Adult Live Entertainment. "Adult live entertainment" shall mean any physical human body activity, whether performed or engaged in, alone or with other persons, including but not limited to singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, win which: (1) the performer (including but not limited to a topless and or bottomless dancer, go-go dancers, exotic dancers, strippers, or similar performers) exposes to public view, without opaque covering, "specified anatomical areas"; and/or (2) the performance or physical human body activity depicts, describes, or relates to "specified sexual activities"whether or not the specified anatomical areas are covered. (k) Adult Modeling Studio. "Adult modeling studio" shall mean a business establishment which provides for any form of consideration, the services of a live human model, who, for the purposes of sexual stimulation of patrons, displays City of Atascadero Ordinance No.380 Page 8 "specified anatomical areas" to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying for such consideration. "Adult modeling studio" does not include schools maintained pursuant to standards set by the Board of Education of the State of California. (1) Adult Motion Picture Theater. "Adult motion picture theater" shall mean a business establishment, with or without a stage or proscenium, where, on a regular and substantial basis and for any form of consideration, material is presented through films, motion pictures, video cassettes, slides, laser disks, holograms, virtual reality devices, or similar electronically generated reproductions that is characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." (m) Adult Oriented Material. "Adult oriented material" shall mean accessories, paraphernalia, books, magazines, laser disks, compact discs, digital video disks, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical." "Adult oriented material" shall include sexually oriented merchandise. SEC. 9.16.103. LOCATION REQUIREMENTS. (a) Except as specified in (b) below, no Adult Oriented Business shall be established or located in any zone in the City. (b) Adult oriented business uses shall be permitted in the CR (Commercial Retail), CS (Commercial Services), IP (Industrial Park) and I (Industrial) zoning districts provided the subject site is at least One Thousand (1,000) feet from the property line of the school, church, library or park site that existed on January 1, 2001, and as shown on Exhibit"A." SEC. 9.16.104. AMORTIZATION OF NONCONFORMING ADULT ORIENTED USES. Any use of real property existing on or before April 111996 which did not conform to the provisions of Section9.16.103, but which was constructed, operated, and maintained in compliance with all previous regulations, shall be regarded as a nonconforming use which may be continued until April 11, 2001. On or before such date, all such nonconforming uses shall be terminated unless an extension of time has been approved by the hearing officer in accordance with the provisions of Section 9.16.105. (a) Abandonment. Notwithstanding the above, any discontinuance or abandonment of the use of any lot or structure as an Adult Oriented Business shall result in a loss of legal nonconforming status of such use. City of Atascadero Ordinance No.380 Page 9 (b) Amortization-- annexed property. Any Adult Oriented Business which was a legal use at the time of annexation of the property and which is located in the City, butwhich does not conform to the provisions of Section 9.16.103 shall be terminated within one (1) year of the date of annexation unless an extension of time has been approved in accordance with the by provisions of Section 9.16.105. SEC. 9.16.105. EXTENSION OF TIME FOR TERMINATION OF NONCONFORMING USE The owner or operator of a nonconforming use as described in Section 9.16.104 may apply under the provisions of this section to for an extension of time within which to terminate the nonconforming use. (a) Time and manner of application. An application for an extension of time within which to terminate a use made nonconforming by the provisions of Section 9.16.103, may be filed by the owner of the real property upon which such use is operated, or by the operator of the use. Such an application must be filed with the City Clerk at least thirty (30) days but no more than one hundred eighty (180) days prior to the time established in Section 9.16.104 for termination of such use or within sixty (60) days of the effective date of this ordinance, whichever date is the last to occur. (b) Content of application; fees. The application shall state the grounds for requesting an extension of time. The filing fee for such application shall be the same as that for a variance as is set forth in the schedule of fees established by resolution from time to time by the City Council. (c) Hearing Procedure. The City Manager or his/her designee shall set the matter for hearing by the Planning Commission within a reasonable time. Pending a final determination on the application, the applicant may continue to operate, but such right does not excuse compliance with regulatory provisions of the Atascadero Municipal Code. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues; may be represented by counsel. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The decision of the Planning Commission may be appealed to the City Council, any decision of the City Council shall be final and subject to judicial review pursuant to Code of Civil Procedure section 1094.8. (d) Approval of extension; findings. An extension under the provisions of this section shall be for a reasonable period of time commensurate with the investment involved, not to exceed two years, and shall be approved only if the Planning Commission makes all of the following findings or such other findings as are required by law. City of Atascadero Ordinance No.380 Page 10 (1) The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted to another use; and such investment was made prior to _the effective date of this ordinance; (2) The applicant will be unable to recoup said investment as of the date established for termination of the use; and (3) The applicant has made good faith efforts to recoup the investment and to relocate the use to a location in conformance with Section 9.16.103. SECTION 3. AMENDMENT OF CODE. Title 5 Chapter 10 of the Municipal Code is hereby appealed and amended to read in its entirety as follows: CHAPTER 10. ADULT ORIENTED BUSINESSES ARTICLE 1. GENERAL PROVISIONS SEC. 5.10.100.101. LEGISLATIVE PURPOSE. It is the purpose of this ordinance to regulate Adult Oriented Businesses in order to promote the health, safety, and general welfare of the citizens of 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 adult oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to adult oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene material. The City Council finds and determines as follows: On September 10, 1998, the Ninth Circuit issued its opinion in Baby Tam& Co., Inc. v. City of Las Vegas, 154 F. 3d 1097 (1998), holding that adult use business licensing ordinances are required to provide for prompt hearing and prompt judicial review for persons whose license or permit applications had been denied. On January 14, 2000, the Ninth Circuit issued its opinion in Baby Tam & Co., Inc. v. City of Las Vegas, No. 99-16809, making further holdings in this regard. The City Council finds that the time allowances in this ordinance are the shortest fixed periods compatible with the balancing between sound planning and land use and protection of First Amendment freedoms. The City Council finds that these time frames are reasonable, in that the City is granting or denying an adult use permit within seven (7) days of the filing of a completed application for such permit. After this filing of an appeal of a decision to grant, conditionally grant or deny an application, the City Council conducts a public hearing on such appeal and renders a written decision. The City Council takes not that California Code of Civil Procedure section 1094.8 was adopted in direct response to Baby Tam I and sets forth an expedited review process for review of permits with any first amendment protections. City of Atascadero Ordinance No.380 Page 11 SEC, 5.10.100.102. DEFINITIONS. For the purpose of this chapter the words and phrases shall have the meanings respectively ascribed to them by section 9.16.102 of the Atascadero Municipal Code which is adopted concurrently with this section and included herein as though fully set forth at this point by this reference. Additional words and phrases used in this chapter shall have the following meanings: (a) Adult Oriented Business Operator. "Adult oriented business operator" (hereinafter "operator") means a person who supervises, manages directs, organizes, controls or in any other way is responsible for or in charge of the premises of and "adult oriented business" or the conduct of activities occurring on the premises thereof. (b) Applicant. "Applicant means a person who is required to file an application for a permit under this chapter, including and individual owner, managing partner, officer of a corporation, or other operator, manager, employee, or agent of an "adult oriented business." (c) Bar. A bar is defined as any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises. (d) Figure Model. "Figure model" means any person who for pecuniary compensation, consideration, hire or reward serves as a live human model for the purposes of sexual stimulation of patrons, displays "specified anatomical areas" to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying such compensation or consideration. (e) Health Officer. "Health officer" means any duly authorized representative of the City of Atascadero. (f) Permittee. "Permittee" means the person to whom an adult oriented business permit is issued. (g) Police Chief. "Police Chief'means the Chief of Police of the City of Atascadero or any duly authorized representative thereof. (h) Person. "Person" means any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character. SEC. 5.10.100.103. PERMITS REQUIRED. (a) It shall be unlawful for any person to conduct operate in the City of Atascadero , the operation of an Adult Oriented Business unless the person first obtains and continues to maintain in full force and effect a permit from the City of Atascadero as herein required. (Adult Oriented Business Regulatory permit) (b) It shall be unlawful for any persons to engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in an Adult Oriented Business unless the person first obtains and continues in full force and effect a permit from the City of Atascadero as herein required. (Adult Oriented Business Performer Permit) (c) The City's designee shall be the City Manager, or any other officer or employee designated by the City Manager to deal with the provisions of this Chapter. City of Atascadero Ordinance No.380 Page 12 ARTICLE 2. APPLICATION AND PERMITS SEC. 5.10.100.201. ADULT ORIENTED BUSINESS REGULATORY PERMIT REQUIRED (a) Every person who proposes to maintain, operate or conduct an Adult Oriented Business in the City of Atascadero shall file an application with the City upon a form provided by the City of Atascadero and shall pay a filing fee, as established by resolution adopted by the City Council from time to time, which shall not be refundable. The fee established may not exceed the cost of processing the application. The City's designee is responsible for granting, denying, revoking, suspending, and canceling sexually oriented business permits for proposed or existing sexually oriented businesses SEC. 5.10.100.202. APPLICATIONS. (a) Adult Oriented Business Regulatory Permits are nontransferable, except in accordance with Section 5.10.100.205. Therefore, all applications shall include the following information: (1) If the applicant is an individual, the individual shall state his or her legal name, including any aliases, address, and submit satisfactory written proof that he or she is at least eighteen(18) years of age. (2) If the applicant is a partnership, the partners shall state the partnership's complete name, address, the names of all partners, whether the partnership is general or limited. (3) If the applicant is a corporation, the corporation shall provide 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 and directors, the name of the registered corporate agent and the address of the registered office for service of process. (b) If the applicant is an individual, he or she shall sign the application. If the applicant is other than an individual, an officer of the business entity shall sign the application. (c) If the applicant intends to operate the Adult Oriented Business under a name other than that of the applicant, the applicant shall file the fictitious name of the Adult Oriented Business and show proof of registration of the fictitious name. (d) A description of the type of Adult Oriented Business for which the Permit is requested and the proposed address where the Adult Oriented Business will operate, plus the names City of Atascadero Ordinance No.380 Page 13 and addresses of the owners and lessors of the Adult Oriented Business site . (e) The address to which notice of action on the application is to be mailed. (f) The names of all employees, independent contractors, and other persons who will perform at the Adult Oriented Business, who are required by Section 5.10.100.206 to obtain an Adult Oriented Business performer License (for ongoing reporting requirements see Section 5.10.100.206). (g) A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the Adult Oriented Business. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches. (h) A diagram of the of f-street parking areas and premises entries of the Adult Oriented Business showing the location of the lighting system required by Section 5.10.100.301(c). SEC. 5.10.100.203. INVESTIGATION AND ACTION ON APPLICATION. (a) Upon receipt of a completed application and payment of the application and Permit fees, the City shall immediately stamp the application as received and promptly investigate the information contained in the 'application to determine whether the application is complete and whether the applicant shall be issued an Adult Oriented Business Regulatory Permit. (b) 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 on that date. Within two business days of receipt the City shall determine whether or not the application is complete. If the application is not complete the City shall promptly notify the applicant of that fact. The time period for granting or denying a Permit shall be stayed during the period win which the application is incomplete. (c) Within fifteen (15) days of receipt of the completed application, the City's designee shall complete the investigation, grant or deny the application in accordance with the provisions of this Section, and so notify the applicant as follows: (1) The City's designee shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. (2) If the application is denied, the City's designee shall attach to the application a statement of the reasons for denial. (3) If the application is granted, the City's designee shall attach to the application an Adult Oriented Business Regulatory Permit. City of Atascadero Ordinance No.380 Page 14 (4) The application as granted or denied and the Permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the address stated in the application. (d) The City's designee shall grant the application and issue the Adult Oriented Business Regulatory Permit upon findings that the proposed business meets the locational criteria of Section 9.16.103; unless the application is denied. The Permittee shall post the Permit conspicuously in the Adult Oriented Business premises. (e) If the City's designee grants the application or if the City's designee neither grants nor denies the application within fifteen (15) days after it is stamped as received (except as provided in Section 5.10.100.202 0), the applicant may begin operating the Adult Oriented Business for which the Permit was sought subject to compliance with the development and performance standards and requirements of Sections 5.10.100.301. Compliance with all portions of the Atascadero Municipal Code is a condition of any permit issued pursuant to this Chapter. SEC. 5.10.100.204. PERMIT DENIAL. The City's designee shall deny the application for any of the following reasons: (a) The building, structure, equipment, or location used by the business for which an Adult-Oriented Business Regulatory Permit is required do not comply with the locational or development and performance standards and requirements of these regulations. (b) The applicant, his or her employee, agent, partner, director, officer, shareholder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for an Adult Business Regulatory Permit. (c) An applicant is under eighteen(18)years of age. (d) The required application fee has not been paid. SEC. 5.10.100.205. TRANSFER OF ADULT ORIENTED BUSINESS REGULATORY PERMITS. (a) A permittee shall not operate an Adult Oriented Business under the authority of an Adult Oriented Business Regulatory permit at any place other than the address of the Adult Oriented Business stated in the application for the permit. (b) A permittee shall not transfer ownership or control of an Adult Oriented Business or transfer an Adult Oriented Business Regulatory Permit to another person unless and until the transferee obtains an amendment to the Permit from the City's designee stating that the transferee is now the permittee. Such an amendment may be obtained only if the City of Atascadero Ordinance No.380 Page 15 transferee files an application with the City's designee in accordance with Sections 5.10.100.201 and 5.10.100.202, accompanies the application with a transfer fee in an amount set by resolution of the City Council, and the City's designee determines in accordance with Section 5.10.100.203 that the transferee would be entitled to the issuance of an original Permit. SEC. 5.10.100.206. ADULT ORIENTED BUSINESS PERFORMER PERMIT. (a) No person shall engage in or participate in any live performance with an emphasis upon "specified anatomical areas" or "specified sexual activities" in an Adult Oriented Business, without a valid Adult Oriented Business Performer Permit issued by the City. All persons who have been issued an Adult Oriented Business Regulatory Permit shall promptly supplement the information provided as part of the application for the Permit required by Section 5.10.100.201, with the names of all Performers required to obtain an Adult Oriented Business Performer Permit, within thirty (30) days of any change in the information originally submitted. (b) The City's designee shall grant, deny and renew Adult Oriented Business Performer Permits. (c) The application for a Permit shall be made on a form provided by the City's designee. An original and two copies of the completed and sworn permit application shall be filed with the City's designee. (d) The completed application shall contain the following information and be accompanied by the following documents: (1) The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant; (2) Age, date and place of birth; (3) Height, weight, hair and eye color; (4) Present residence address and telephone number; (5) Whether the applicant has ever been convicted of: (i) Any of the offenses set forth in Sections 315, 316, 266a, 266b, 266c, 266e, 266g, 266h, 2661, 647(a), 647(b) and 647(d) of the California penal Code as those sections now exist or may hereafter be amended or renumbered. (ii) The equivalent of the aforesaid offenses outside the State of California. (6) Whether such person is or has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other jurisdiction to engage in City of Atascadero Ordinance No.380 Page 16 prostitution in such other jurisdiction. If any person mentioned in this subsection has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other state to engage in prostitution, a statement shall be submitted giving the place of such registration, licensing or legal authorization, and the inclusive dates during which such person was so licensed, registered, or authorized to engage in prostitution. (7) State driver's license or identification number; (8) Satisfactory written proof that the applicant is at least eighteen(18) years of age; (9) If the application is made for the purpose of renewing a License, the applicant shall attach a copy of the License to be renewed. (e) The completed application shall be accompanied by a non-refundable application fee. The amount of the fee shall be set by resolution of the City Council. The amount of such fee may not exceed the cost of processing the application. (f) Upon receipt of an application and payment of the application fees, the City's designee shall immediately stamp the application as received and promptly investigate the application. (g) If the City's designee determines that the applicant has completed the application improperly, the City's designee shall promptly notify the applicant of such fact. The time period for granting or denying a Permit shall be stayed during the period in which the application is incomplete. SEC. 5.10.100.207. INVESTIGATION AND ACTION ON APPLICATION. (a) Within two (2) business days after receipt of the completed application, the City's designee shall grant or deny the application and so notify the applicant as follows: (1) The City's designee shall write or stamp "Granted" or "Denied" on the application and date and sign such notation (2) If the application is denied, the City's designee shall attach to the application a statement of the reasons for denial. (3) If the application is granted, the City's designee shall attach to the application an Adult Oriented Business Performer Permit. (4) The application as granted or denied and the permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the residence address stated in the application. City of Atascadero Ordinance No.380 Page 17 (b) The City's designee shall, grant the application and issue the Permit unless the application is denied for one or more of the reasons set forth in subsection (d) of this section. (c) If the City's designee grants the application or if the City's designee neither grants nor denies the application within two (2) business days after it is stamped as received (except as provided in Section 5.10.100.206 (g), the applicant may begin performing in the capacity for which the License was sought. (d) The City's designee shall deny the application for any of the following reasons: (1) The applicant has knowingly made any false, misleading, or fraudulent statement of a material fact in the application for a Permit; (2) The applicant is under eighteen(18) years of age; (3) The Adult-Oriented Business Performer Permit is to be used for performing in a business prohibited by State or City law. (4) The applicant has been registered in any state as a prostitute. (5) The applicant has been convicted of any of the offenses enumerated in Section 9.30.100.206(4) (5) or convicted of an offense outside the State of California that would have constituted any of the described offenses if committed within the State of California. A Permit may be issued to any person convicted of the described crimes if the conviction occurred more than five (5) years prior to the date of the application. (e) Each Adult Oriented Business Performer Permit shall expire one (1) year from the date of issuance and may be renewed only by filing with the City's designee a written request for renewal, accompanied by the application fee and a copy of the Permit to be renewed. The request for renewal shall be made at least thirty (30) days before the expiration date of the Permit. Applications for renewal shall be acted on as provided herein for applications for Permits. SEC. 5.10.100.209. APPEAL OF DENIAL, SUSPENSION OR REVOCATION. (a) Administrative Appeal to the City Council. (1) After denial 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, under the provisions of the Atascadero Municipal Code and may appeal any decision of the City Council to the Superior Court pursuant to California Code of Civil Procedure 1094.8 City of Atascadero Ordinance No.380 Page 18 ARTICLE 3. OPERATING AND DEVELOPMENT STANDARDS. SEC. 5.10.100.301. ADULT ORIENTED BUSINESS DEVELOPMENT AND OPERATING STANDARDS. (a) Operating standards are a legitimate and reasonable means of ensuring that adult businesses are conducted in a manner so as to minimize their adverse secondary effects and to help assure that such operators and businesses comply with reasonable regulations related to such requirements to minimize control problems associated with such businesses and thereby protect the health, safety, and welfare of City residents, protect citizens from increased crime, preserve the quality of life, preserve property values and the character of surrounding neighborhoods and businesses, and deter the spread of urban blight. The operational requirements contained in this Ordinance do not unreasonably restrict the establishment or operation of constitutionally protected adult businesses in the City. (b) The City Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication. For example, the closing hours requirement means that adult businesses are free to operate seven (7) days a week for sixteen (16) hours per day. The City Council takes note of the proliferation of adult material on the Internet and its availability as an alternative avenue of communication. The City Council also considers and relies on published decisions examining the proliferation of communications on the Internet. ( Reno v. American Civil Liberties Union, 521 U.S. 844[the principle channel through which many Americans now transmit and receive sexually explicit communication is the Internet]; Anheuser-Busch v. Schmoke, 101 F. 3d 325 [the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the Internet is one available channel of communication]; U.S. v Hockings, 129 F. 3d 1069; U.S. Thomas, 74 F. 3d 701 [recognizing the Internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].) The emergence of the Internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested person in every community with a mere keystroke. An adult business no longer has to be "actually" physically located in a city to be available in the community. (c) The City Council has also determined that a closing hours requirement promotes the reduction of deleterious secondary effects from adult facilities and reasonably relies on prior court decisions on the need for closing hours including Mitchell v. Comm. On Adult Entertainment, 10 F. 3d 123; Lady J Lingerie, Inc. v. City of Jacksonville, 973 F. Supp 1428; and City of Colorado Springs v. 2345 Inc, 896 P. 2d 272. (d) No Adult Oriented Business shall be operated in any manner that permits the observation of any material or activities depicting, describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas" from any public way or from any location outside the building or area of such establishment. This provision shall apply to any City of Atascadero Ordinance No.380 Page 19 display, decoration, sign, show window or other opening. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times. (e) All off-street parking area 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) foot candle of light on the parking surface and/or walkways. The 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 premises. (f) Except for those businesses also regulated by the California Department of Alcoholic Beverage Control, an Adult Oriented Business shall be open for business only between the hours of 8:00 a.m. and 2:00 a.m. This restriction shall not apply to an adult hotel or adult motel. (g) The building entrance to an Adult Oriented Business shall be clearly and legibly posted with a notice indicating that persons under eighteen (18) years of age are precluded from entering the premises. No person under the age of eighteen (18) years shall be permitted within the premises at any time. (h) All indoor areas of the Adult-Oriented Business within which patrons are permitted, except rest rooms, shall be open to view by the management at all times. (i) Any adult-oriented business which is also an "adult arcade", shall comply with the following provisions: (1) No adult booth/individual viewing area shall be occupied by more than one individual at a time. (2) Each adult booth/viewing area within the adult business shall be visible from a continuous and accessible main aisle in a public portion of the establishment, and shall not be obscured by any door, curtain, wall, two way mirror or other device which would prohibit a person from seeing the entire interior of the adult booth/individual viewing area from the main aisle. A manager shall be stationed in the main aisle at all times. Further, no one shall maintain any adult booth/individual viewing area in any configuration unless the entire interior wherein the picture or entertainment that is viewed is visible from one main aisle. The entire body of any patron in any adult booth/individual viewing area must be visible from the main aisle without the assistance of mirrors or other device. (3) No doors are permitted on an adult booth/individual viewing are. No partially or fully enclosed adult booth/individual viewing areas or partially or fully concealed adult booth/individually viewing areas shall be maintained. City of Atascadero Ordinance No.380 Page 20 (4) The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes between any two such rooms such as would allow viewing from one booth into another or such as to allow physical contact of any kind between the occupants of any two such booths or rooms. (5) No holes or other openings (commonly known as "glory holes") shall be permitted between adult booths/individual viewing areas. Any such hole or opening shall be repaired within 24 hours using "pop" rivets to secure metal plates over the hole or opening to prevent patrons from removing the metal plates. (6) The floors, seats, walls and other interior portions of all video booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen or saliva in any such booths shall be evidence of improper maintenance and inadequate sanitary controls. (7) No beds shall be permitted in an adult booth/individual viewing area. (j) All areas of the Adult Oriented Business shall be illuminated at a minimum of the following foot-candles, minimally maintained and evenly distributed at ground level: Area Foot-Candles Bookstores and other retail 20 establishments Theaters and cabarets 5 (except during performances, at which times lighting shall be at least 1.25 foot-candles) Arcades 10 Motels/Hotels 20 (in public areas) Modeling studios 20 (k) The Adult Oriented Business shall provide and maintain separate rest room facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the rest room(s) for females, and female patrons and employees shall be prohibited from using the rest room(s) for males, except to carry out duties of repair, maintenance and.cleaning of the rest room facilities The rest rooms shall be free from any Adult Material. Rest rooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph shall not apply to an Adult City of Atascadero Ordinance No.380 Page 21 Oriented Business which deals exclusively with sale or rental of Adult Material which is not used or consumed on the premises, such as an Adult Bookstore or Adult Video Store, and which does not provide rest room facilities to its patrons or the general public. (1) On Site Manager; Security Measures. All adult businesses shall have a responsible person who shall be at least 18 years of age and shall be on the premises to act as a manager at all times during which the business is open. No performer may serve as the manager. The individual(s) designated as the on site manager shall provide his/her name to the Planning Director to receive all complaints and be given by the owner and or operator the responsibility and duty to address and resolve all violations taking place on the premises. All adult businesses shall proved a security system that visually records and monitors all parking lot areas, or in the alternative, state licensed unformed security guards to patrol and monitor the parking lot areas during all times during which the business is open. It the business employs security guards, they shall provide written confirmation to the Police Chief prior to their employment that the guards are duly registered. No performer may serve as a security guard. A sign indicating compliance with this provision shall be posted on the exterior of the premises between four to six feet from the ground. The sigh shall not exceed two feet by three feet and shall at a minimum be one foot bone and a half feet and shall utilize red or black printing letters of not less than 1 inch in size. (m) No exterior door or window on the premises of an adult business shall be propped or kept open at anytime while the business is open and any exterior windows shall be covered with opaque coverings at all times. (n) The following additional requirements shall pertain to Adult Oriented Businesses providing live entertainment: (1) No person shall perform live entertainment for patrons of an Adult Oriented Business except upon a stage at least eighteen (18) inches above the level of the floor which is separated by a distance of at least ten(10) feet from the nearest area occupied by patrons, and no patron shall be permitted within ten (10) feet of the stage while the stage is occupied by an performer. "Performer" shall mean any person who is an employee or independent contractor of the Adult Oriented Business, or any person who, with or without any compensation or other form of consideration, performs live entertainment for patrons of an Adult Oriented Business. (2) The Adult Oriented Business shall provide separate dressing room facilities for performers which are exclusively dedicated to the performers' use. (3) The Adult Oriented Business shall provide an entrance/exit for performers which is separate from the entrance/exit used by patrons. (4) The Adult Oriented Business shall provide access for performers between the stage and the dressing rooms which is completely separated from the patrons. If such separate access is not physically feasible, the Adult-Oriented Business City of Atascadero Ordinance No.380 Page 22 shall provide a minimum three (3) foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers capable of(and which actually results in)preventing any physical contact between patrons and performers. (5) No performer, either before, during or after performances, shall have physical contact with any patron and no patron shall have physical contact with any performer either before, during or after performances by such performer. This subsection shall only apply to physical contact on the premises of the Adult Oriented Business. This limitation shall not be construed to apply to incidental physical contact. (6) Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between performers and patrons required by this subsection. (7) No patron shall directly pay or give any gratuity to any performer and no performer shall solicit any pay or gratuity from any patron. (8) No owner or other person with managerial control over an Adult Oriented Business (as that term is defined herein) shall permit any person on the premises of the Adult Oriented Business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque coverage, and/or the female breast with less than a fully opaque coverage over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical part required to be covered. SEC. 5.10.100.302. REGISTER AND PERMIT NUMBER OF EMPLOYEES. (a) Every permittee of an Adult Oriented Business which provides live adult must maintain a register of all persons so performing on the premises and their permit numbers. Such register shall be available for inspection during regular business hours by any police officer of the City of Atascadero. SEC. 5.10.100.303. DISPLAY OF PERMIT AND IDENTIFICATION CARDS. (a) Every Adult Oriented Business shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such Adult Oriented Business in a conspicuous place so that the same may be readily seen by all persons entering the Adult Oriented Business. (b) The Police Chief shall provide each Adult Oriented Business Performer required to have a Permit pursuant to the chapter, with an identification card containing the name, address, photograph and permit number of such performer. (c) An Adult Oriented Business Performer shall have such card available for inspection at all City of Atascadero Ordinance No.380 Page 23 times during which such person is on the premises of the Adult Oriented Business. SEC. 5.10.100.304. EMPLOYMENT OF AND SERVICES RENDERED TO PERSONS UNDER THE AGE OF EIGHTEEN (18) YEARS PROHIBITED. (a) It shall be unlawful for any permittee, operator or other person in charge of any Adult Oriented Business to employ, or provide any service for which it requires such permit, to any person who is not at least eighteen(18) years of age. (b) It shall be unlawful for any permittee, operator or other person in charge of any Adult Oriented Business to knowingly permit to enter, or remain within the Adult Oriented Business, any person who is not at least eighteen years of age. ARTICLE 4. MISCELLANEOUS PROVISIONS SEC. 5.10.100.401. INSPECTION. An applicant or Permittee shall permit representatives of the Police Department, Health Department, Fire Department, Planning Division, or other City Departments or Agencies to inspect the premises of an Adult Oriented Business for the purpose of insuring compliance with the law at any time it is occupied or opened for business. A person who operates an Adult Oriented Business or his or her agent or employee is in violation of the provisions of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or open for business. SEC. 5.10.100.402. REGULATIONS NONEXCLUSIVE. The provisions of this article regulating Adult Oriented Businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the City Council of the City of Atascadero. SEC. 5.10.100.403. EMPLOYMENT OF PERSONS WITHOUT PERMITS UNLAWFUL. It shall be unlawful for any owner, operator, manager, or permittee in charge of or in control of an Adult Oriented Business which provides live adult entertainment to allow any person to perform such entertainment who is not in possession of a valid Adult Oriented Business Performer Permit. City of Atascadero Ordinance No.380 Page 24 SEC. 5.10.100.404. TIME LIMIT FOR FILING APPLICATION FOR PERMIT. All persons who possess an outstanding business license 'heretofore issued for the operation of an Adult Oriented Business and all persons required by this chapter to obtain an Adult Oriented Business Performer Permit, must apply for and obtain such a permit within ninety (90) days of the effective date of this chapter. Failure to do so and continued operation of an Adult Oriented Business, or the continued performances in an Adult Oriented Business after such time without a permit shall constitute a violation of this chapter. SEC. 5.10.100.405. SEVERABILITY. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this chapter or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one (1) or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective. SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDING. The City Council finds that this ordinance is enacted in order to mitigate the threat posed to the public peace, health, or safety by Adult Oriented Businesses. In this regard, the findings set forth in Section 1 of this ordinance are incorporated herein by reference. This ordinance either provides for the amendment of existing regulations applicable to Adult Oriented Businesses or, for the first time, provides for zoning regulations which are specifically applicable to Adult Oriented Business uses. Such uses are already allowed under the City's existing zoning regulations. Therefore, it can be seen with certainty that there is no possibility that this ordinance may have a significant adverse effect on the environment, and therefore the adoption ordinance is exempt from CEQA pursuant to Section 15061(b) (3) of this the CEQA guidelines. SECTION 5: The City Clerk shall cause a summary of this ordinance, approved by the City Attorney, together with ayes and noes, to be published at least five days prior to its final passage in the Atascadero News, a newspaper of general circulation, printed, published and circulated in the City of Atascadero in accordance with Section 36933 of the Government Code. The City Clerk shall cause a summary of this Ordinance, approved by the City Attorney, together with ayes and noes, to be published before the expiration of fifteen (15) days after its final passage in the Atascadero News. A copy of the full text of this Ordinance shall be on file in the City Clerk's Office on and after the date following introduction and passage and shall be available to any interested member of the public. This ordinance shall take effect and be in full force and effect thirty (30) days after its final passage. On motion by Council Member Luna and seconded by Council Member Clay, the foregoing Ordinance is adopted by the following roll call vote: City of Atascadero Ordinance No.380 Page 25 AYES: Council Members Clay, Luna, Scalise and Mayor Arrambide NOES: None ABSENT: Council Member Johnson ADOPTED: March 27, 2001 CITY OF ATA A�DERO J ichael Arrambide, Mayor ATTEST: Marcia McClure Torgerson, Cit Jerk ORDINANCE CODE PROVISION APPROVED AS TO FORM AND CODIFICATION: B Y• (��' �kjw� Royr anley, City I'mey Dated: