HomeMy WebLinkAboutOrd 17271 ORDINANCE NO. 1727
2 ORDINANCE OF THE CITY OF BURLINGAME
AMENDING CHAPTER 25.76 AND ADDING CHAPTER 10.58
3 TO CLARIFY REGULATIONS REGARDING ADULT-ORIENTED BUSINESSES
AND MAKING CONFORMING CHANGES TO TITLES 10 AND 25
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5 The City Council of the City of Burlingame does ordain as follows:
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7 Section 1. The City Council hereby finds the following:
8 A. In adopting this ordinance, the City Council takes legislative notice of the existence and
9 content of the following studies concerning the adverse secondary side effects of Adult -Oriented
10 Businesses in the following cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle,
11 Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana
12 (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix,
13 Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); and Los
14 Angeles, California (1977). Prior to the adoption of this Ordinance, the City Council and City staff
15 reviewed detailed studies prepared by otherj urisdictions regarding the detrimental social andeconomic
16 effects on persons and properties immediately surrounding established Adult -Oriented Businesses.
17 These studies included those prepared by the cities ofAustin, Texas; Biloxi, Mississippi; Indianapolis,
18 Indiana; Garden Grove, California; Los Angeles, California; and Phoenix, Arizona. The City Council
19 finds that these studies are relevant to the problems addressed by the City in enacting this ordinance
20 to regulate the adverse secondary side effects of Adult -Oriented Businesses, and more specifically
21 finds that these studies provide convincing evidence that:
22 1. Adult -Oriented Businesses are linked to increases in the crime rates in those
23 areas in which they are located and in surrounding areas.
24 2. Both the proximity of Adult -Oriented Businesses to sensitive land uses and the
25 concentration of Adult -Oriented Businesses tend to result in the blighting and deterioration of
26 the areas in which they are located.
27 3. The proximity and concentration of Adult -Oriented Businesses adjacent to
28 residential, recreational, religious, educational and other Adult -Oriented Business uses can
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cause families, residences, and other businesses to move elsewhere.
4. There is substantial evidence that an increase in crime tends to accompany,
concentrate around, and be aggravated byAdult-OrientedBusinesses, 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
oftenhave a deleterious effect onnearbybusinesses and residential areas, causing, among other
adverse secondary effects, an increase in crime and a decrease in property values.
B. The City Council believes the following statements are true, in part based upon its
understanding of the experiences of cities such as Austin, Texas; Biloxi, Mississippi; Garden Grove,
California; Indianapolis, Indiana; Los Angeles, California; and Phoenix, Arizona:
1. Adult -Oriented Businesses should notbe located in areas ofthe Citywhich are
in the vicinity of religious institutions, city facilities, and schools;
2. The image of the City of Burlingame as a pleasant and attractive place to reside
will be adversely affected by the presence ofAdult-Oriented Businesses in close proximity to
religious institutions, city athletic fields and facilities, and schools;
3. The location of Adult -Ori
ented Businesses on the main commercial
thoroughfares ofthe 0; Irl
cause a loss ofsensitivityto the adverse effect ofpomography
upon children, established family relations, respect for marital relationship and for the sanctity
of marriage relations of others, and the concept of non-aggressive consensual sexual relations,
as well as increased vacancy rates in those commercial districts, therebyreducing the City s tax
base;
4. The City Council believes that allowing Adult -Ori
ented Businesses in the manner
provided herein is appropri
ate because such areas include ample accessible real estate that is
easily accessible by fr
eeways, highways and roads;
5. Without the adoption of this Ordinance, Adult -Oriented Businesses might be
allowed to locate anywhere within the City by right, requiri
ng no permit other than a business
license to operate, thereby subjecting the people of the City to the unmitigated secondary
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effects shown to accompany unregulated and under -regulated Adult -Oriented Businesses;
6. A reasonable regulation of the location of Adult -Oriented Businesses protects the
image of the community and its property values and protects its residents from the adverse
secondary effects of such Adult -Oriented Businesses, while providing those who desire to
patronize Adult -Oriented Businesses an opportunity to do so in appropriate areas within the
City;
7. Regulations for Adult -Oriented Businesses should be developed to prevent
deterioration and or degradation of the vitality of the community before the problem exists,
rather than waiting for a problem to be created;
8. Adult -Oriented Businesses should be regulated by zoning which separates such
land uses from other incompatible uses.
C. Based on the foregoing, the City Council ofthe City ofBurlingame fords and determines
that special regulation ofAdult-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 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, particularly when several of them are concentrated under certain circumstances or
located in direct proximity to sensitive uses such as residences, schools, and churches, thereby having
a deleterious effect upon the adjacent areas. 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.
D. The locational requirements established by this ordinance do not umeasonablyrestri
ct the
establishment or operation of constitutionally protected Adult -Ori
ented Businesses in the City, and a
sufficient reasonable number of appropriate locations for Adult -Oriented Businesses are provided by
this ordinance. 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, 117 S. CT. 2329, 138 L. Ed.2d 874 (1997);
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Anheuser-Busch v. Schmoke, 101 F.3d 325,329 (4'h Cir. 1996), cert. denied 520 U.S. 1204 (1997);
U.S. v. Hockings,129 F.3d 1069 (9th Cir. 1997); see also U.. S. v. Thomas, 74 F. 3d 701 (6th Cir. 1996),
cert. denied 519 U.S. 820. The emergence ofthe 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. The City Council also recognizes and relies on information regarding the
number of adult businesses in the following nearby municipalities: near Redwood City (2 adult
entertainment stores) San Mateo (2 adult entertainment stores). In addition, there are numerous adult
businesses in the City and County of San Francisco, approximately 15 miles away.
E. In developing this ordinance, the City Council has been mindfirl oflegal 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 ofAdult-Oriented Businesses. The City Council has considered decisions
of the United States Supreme Court regarding local regulation ofAdult-Oriented Businesses and takes
legislative notice of the factual findings and legal conclusions in the numerous judicial decisions on
the regulation of Adult -Oriented Businesses, including but not limited to: Young v. American Mini
Theaters, Inc., 427 U.S. 50 (1976) (Red. denied 429 U.S. 873); Renton v. Playtime Theaters, 475 U.S.
41 (1986) (Red. denied 475 U.S.1132); FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); Barnes v. Glenn
Theater, 501 U.S. 560 (1991); and City ofErie v. Pops A.M. DBA "Kandyland" (2000) U.S., 120
S.Ct. 1382; United States Court of Appeals 9th Circuit decisions, including but not limited to:
Topanga Press, et al. v. City of Los Angeles, 989 F.2d 1524 (1993); several California cases including
but not limited to: City of National City v. Wiener, 3 CalAth 832 (1993); People v. Superior Court
(Lucero) 49 Cal.3d 14 (1989); and City of Vallejo v. AdultBooks, 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. Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult
Entertainment (3rd Cir. 1993)10 F.3d 123, International Eateries v. Broward County (11th Cir. 199 1)
941 F.2d 1157, and Star Satellite v. City of Biloxi (5Th Cir. 1986) 779 F.2d 1074.
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F. The City Council finds that locational criteria alone do not adequately protect the health,
safety, and general welfare of the citizens ofthe City, 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 ofKev, 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.
G. The aforementioned studies show that sex-related offenses are included within the
� category of secondary effects caused by unregulated orunder-regulated Adult -Oriented Businesses.
H. The City Council believes that persons who have been convicted ofsex-related offenses
have shown a propensity to commit such offenses and should not be permitted to operate
Adult -Oriented Businesses for five (5) years after such conviction. This is because the sexually
oriented nature of the business creates an increased opportunity for the commission of sex-related
offenses by persons who have exhibited a propensity for the commission of such offenses.
I. The City Council believes as true the documents and judicial decisions in the public record
established and submitted in conjunction with this Ordinance which demonstrate that vari
ous
operational practices ofAdult-Oriented Businesses increase criminal activity, includingbut not limited
to sexually related criminal activity, and increase the likelihood of the transmission of diseases
including but not limited to sexually transmitted diseases such as gonorrhea, syphilis, herpes, acquired
immune deficiency syndrome ("AIDS") and hepatitis-B.
J. The City Council believes the following statements are true, in part
, based upon its
understanding of the documents and judicial decisions in the public record established an
d submitted
with this Ordinance:
1. Evidence indicates that dancers, models, entertainers, and other persons who
publiclyperform Specified Sexual Activities or publicly display Specified Anatomical Parts
(as these terms are defined in the Ordinance) in Adult -Oriented Businesses (collectively
referred to as "Performers") have been found to engage in sexual activities with patrons of
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Adult -Oriented Businesses on the sites of the Adult -Oriented Businesses;
2. Evidence has demonstrated that Performers employed by Adult -Oriented
Businesses have been found to offer and provide private shows to patrons, who, far 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 establishments;
4. Evidence indicates that fully enclosed booths, individual viewing areas, and other
small rooms whose interior cannot be seen from public areas ofthe establishment ("Individual
Viewing Areas") regularly have been found to be used as a location for engaging in unlawful
sexual activity;
5. Individual Viewing Areas have been found to contain "glory holes" in the walls
joining abutting Individual Viewing Areas, which are used by customers to facilitate sexual
activity between the occupants of the abutting Individual Viewing Areas;
6. Individual Viewing Areas have been found to be unsanitary due to the existence
of semen, saliva, and blood on the walls and floors of the Individual Viewing Areas;
7. Medical science has found that the AIDS and hepatitis-B viruses are carried in the
semen of infected males and have a potential life span of 2 to 3 hours outside the human body;
8. The existence of semen on the walls an
d floors of the Individual Viewing Areas
can facilitate the transmission of the AIDS an
d hepatitis-B viruses;
9. The practice of individuals having anonymous an
d/or unprotected sexual relations
in Tndividual Viewing Areas can facilitate the transmission of the AID
S and hepatitis-B viruses
as well as other sexually transmitt
ed diseases;
10. Poorly lit or unlit areas ofAdult-Ori
ented Businesses provide a location for people
to engage in illegal sexual activities;
11. Police agencies have determined that some Adult -Oriented Businesses and the
operators thereof have been found to be directly engaged in (as well as aid and abet) cri
and illegal sexual activities. Such individuals also have been lrnown to use aliases;
12. Man
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y jurisdictions have found that Adult -Oriented Businesses generate excessive
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noise and disorderly conduct, particularly at the closing time of the Adult -Oriented Business,
which creates an adverse noise public safety impact on surrounding businesses and
communities;
13.Once approved, Adult -Oriented Businesses have altered the interior floor plans of
the business establishment in order to create areas that are not openly visible in order to
provide for areas where their performers and patrons can more readily engage in prohibited
physical sexual activity. In order to prevent this problem, it is necessary to prevent
Adult -Oriented Businesses from making alterations to their floor plans without the prior
approval of the City; and
14. Adult -Oriented Businesses have been found to regularly attempt to violate the
operational requirements imposed upon them for the purposes of reducing the pernicious
secondary effects such businesses cause. For this reason, frequent, unannounced inspections
of such businesses are necessary to ensure compliance with these operational requirements.
K. Zoning, licensing and other police power regulations are legitimate, reasonable means of
accountability to protect the quality of life in the community of Burlingame by attempting to 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 accompanythe operation of such
businesses.
L. The City Council is concerned about the possible harmful effects on children and minors
exposed to the effects of such Adult -Oriented Businesses and the deteri
oration of respect for family
values, and the need and desire of children and minors to stay away from and avoid such businesses,
which can cause 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 and visitors to the City; 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.
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M. It is not the intent of the City Council in enacting this ordinance, or any provision thereof,
to condone or legitimize the distribution of obscene material, and the City notes that state lawprombits
thC distribution of some obscene materials and expects and encourages law enforcement officials to
enforce state obscenity statutes against such illegal activities in the City.
N. 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.
O. In prohibiting public nudity in Adult -Oriented Businesses, the City Council does not
intend to proscribe the communication of erotic messages or any other communicafive element or
activity, but rather only to prohibit public nudity due to the secondary impacts associated with such
public nudity.
P. 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.
Q. 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 extent feasible, those
undesirable secondary effects which the aforementioned studies have shown to be associated with the
development and operation of Adult -Oriented Businesses.
R. 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 its Municipal Code.
S. 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.
T. Requiring separations between Performers and patrons reduces the likelihood that such
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persons will negotiate narcotics sales and/or transact sexual favors within the Adult -Oriented Business.
U. The City Council finds that this Ordinance is a comprehensive content neutral zoning
ordinance regulating the time, place and manner of operation of Adult -Oriented Businesses pursuant
to Government Code Section 65850 sub. (g)(1) and Business and Professions Code Section 16000.
V. 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 bymanagement
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.
W. The proposed ordinance provisions are generally consistent with limitations in other
communities in the County of San Mateo and therefore would not constitute an undue burden in
compliance or understanding.
X. The ordinance allows adult-oriented businesses that meet the requirements of this
ordinance to locate in the C-4 zone as a permitt
ed use, while at the current time, the zoning allows
such uses in the C-4 zone as a conditional use, which may no longer be upheld under State or Federal
caselaw.
Y. The City does not have any record of any existing adult-oriented businesses in the City
of Burlingame as ofthe date of adoption ofthis ordinance and therefore, this ordinan
ce does not create
any non -conforming problems for an
y existing businesses or persons.
Z. This ordinance is intended to supersede but not nullify Chapters of the Municipal Code
as a comprehensive redrafting of the City's regulations regarding Adult-ori
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ented Businesses.
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Section I Chapter 25.76 is amended to read as follows:
Chapter 25.76
ADULT-ORIENTED BUSINESSES
25.
76.010
Purpose.
25.76.020
Definitions.
25.76.030
Locational requirements.
25.76.040
Severability.
25.76.010
Purpose.
It is the intent ofthis chapterto prevent community -wide adverse economic impacts, increased
crime, decreased property values, and the deteriorarion ofneighborhoods which can be brought about
by the concentration of adult-oriented businesses in close proximity to each other or proximityto other
incompatible uses such as schools for minors, churches, city athletic facilities, and residentially zoned
districts or uses. The city council finds that it has been demonstrated in various communities that the
concentration of adult-oriented businesses causes an 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 chapter 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. Over
the history of the city, the zoning regulations have allowed adult-oriented businesses under certain
conditions and in certain areas, and to the knowledge of the city, there are currently no existing adult-
oriented businesses in the city.
� 25.76.020 Definitions.
The following definitions apply to this chapter:
(a) Adult -Oriented Business or Businesses. "Adult-oriented business" or "adult-oriented
businesses" has the same meaning as defined in section 10.5 8.015 of this code an
d incorporating into
that term the definitions contained in that section.
(b) Church. "Church" is a structure that is used primarily for religious worship and related
religious activities.
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(c) City athletic facility. "City athletic facility' means an athletic facility operated by or for
the city and that regularly attracts minors to participate in or witness athletic skills or competition. The
definition does not include a passive recreation area, such as open space, or a bicycle path or similar
trail or walking area.
(d) Establish. "Establish" means and includes any and all of the following:
(1) The opening or commencement, or re -opening or recommencement, of any adult-oriented
business as a new or restarted business; or
(2) The conversion of an existing business, whether ornot anadult-oriented business, to any
adult-oriented business as defined in this section; or
(3) The addition of any of the adult-oriented businesses defined in this section to any other
existing adult-oriented business; or
(4) The relocation of any such adult-oriented business.
(e) School. "School" means any child or day care facility, or an institution of learning for
minors, whether public or private, offering instruction in those courses of study required by the
California Education Code and maintained pursuant to standards set by the State Board of Education.
This definition includes a nursery school, kindergarten, elementary school, middle or junior high
school, senior high school, or any special institution of education, but it does not include a vocational
or professional institution of higher education, including a community or junior college, college, or
university.
25.76.020 Locational requirements.
(a) No adult-oriented
business shall be established or located in any zone in the city other than
the C-4 zone.
(b) Within the C-4 zone, an adult-oriented business shall not be established or located within
the following minimum distan
ces:
(1) Within 1000 feet of an
y other adult-oriented business.
(2) Within 1000 feet of any then -existing church, school, or city athletic facility.
(c) The distances set forth above shall be measured as a radius from the primary
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ea It -oriented business to the property lines of the property soused without regard to intervening
structures.
25.76.030 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, invalid, or ineffective.
Section 3. Anew Chapter 10.58 is added as follows:
Chapter 10.58
ADULT-ORIENTED BUSINESSES
� Article 1. General Provisions
10.58.Ain
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Legislative purpose.
10.58.015
Definitions.
10.58.020.
Permits required.
Article
2.
Application and Permits
10.58.025
Adult-oriented business regulatory permit required.
10.58.030
Applications.
10.58.035
Investigation and action on application.
10.58.040
Permit denial.
10.58.042
Permit expiration and renewal.
10.58.045
Transfer of adult-oriented business regulatory permits.
10.58.050
Adult-oriented business performer permit process.
10.58.055
Investigation and action on application.
10.58.057
Expiration and renewal of performer permit.
10.58.060
Suspension or revocation of adult-oriented business regulatory permits and
adult-oriented business performer permits.
10.58.065
Appeal of denial, suspension, or revocation.
Article
3.
Facilities and Employees
10.58.070
Adult-oriented business development and performance standards.
10.58.075
Register and permit number of employees.
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10.58.080
Display of permits and
identification cards.
10.58.085
Regulations nonexclusive.
Employment of and services to persons under the age of eighteen (18) years prohibited.
Article 4, Miscellaneous Provisions
10.58.090
Inspection.
10.58.095
Regulations nonexclusive.
10.58.100
Employment of persons without permits unlawful.
10.58.105
Time limit for filing application for permit.
10.58.110.
Severability.
Article 1. General Provisions
10.58.010 Legislative purpose.
It is the purpose of this chapter to regulate adult-oriented businesses in order to promote the
health, safety, morals, and general welfare of the citizens of the city. The provisions of this chapter
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 chapter to restrict or deny access by adults to adult-oriented materials protected by the First
Amendment of either the State or Federal Constitution, 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 chapter to condone or legitimize in any way the distribution of obscene material.
110.58.015 Definitions.
For the purpose of this chapter, the following words and phrases shall have the meanings
respectively ascri
bed to them by this section:
(a) Adult-oriented businesses. "Adult-ori
ented businesses" or "Adult-oriented business" means
any one of the following, or combination thereof:
(i) Adult arcade. "Adult arcade" means an establishment where, for any form of
consideration, one or more still or motion picture projectors,
or similar machines, for viewing
by five (5) or fewer persons each, are used to show films, computer generated images, motion
pictures, video cassettes, slides or other photographic reproductions thirty (30) percent or more
of the number of which are distinguished or characterized by an emphasis upon the depiction
or description of specified sexual activities or specified anatomical areas; or
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(ii) Adult bookstore. "Adult bookstore" means an establishment that has thirty (30)
percent or more of its stock in books, magazines, periodicals or other printed matter, or of
photographs, films, motion pictures, video cassettes, slides, tapes, records, disks, or other
forms of visual or audio representations which are distinguished or characterized by an
emphasis upon the depiction or description of specified sexual activities and/or specified
anatomical areas; or
(iii) Adult cabaret. "Adult cabaret" means a nightclub, restaurant, or similar business
establishment that:
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(A) Regularly features live performances which are distinguished or
characterized by an emphasis upon the display of specified anatomical areas or
specified sexual activities; or
(B) Regularly features persons who appear semi-nude; or
(C) Shows films, computer generated images, motion pictures, video cassettes,
slides, or otherphotographic or graphic reproductions thirty (30) percent or more ofthe
number of which are distinguished or characterized by an emphasis upon the depiction
or description of specified sexual activities or specified anatomical areas; or
(iv) Adult hotel/motel. "Adult hotel/motel" means a hotel or motel or similar business
establishment offeri
ng public accommodations for any form of consideration that:
(A) Provides patrons with closed-circuit television transmissions, films,
computer generated images, motion
pictures, video cassettes, slides, or other
photographic reproductions thirty (30) percent or more of the number of which are
distinguished or characterized by an emphasis upon the depiction or description of
specified sexual activities or specified anatomical areas; and
(B) Rents, leases, or lets any room for less than
a six (6) hour period, or rents,
leases, or lets any single room more than twice in a 24-hour peri
od; or
(v) Adult motion picture theater. "Adult motion picture theater" means a business
establishment where for any form of consideration, films, computer generated images, moti
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pictures, video cassettes, slides or similar photographic reproductions are shown, and thirt
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(30) percent or more of the number ofwhich are distinguished or characterized by anemphasis
upon the depiction or description of specified sexual activities or specified anatomical areas;
or
(vi) Adult theater. "Adult theater" means" theater, concerthall7 auditorium, or similar
establishment that for any form of consideration, regularly features live performances which
are distinguished or characterized by an emphasis on the display of specified anatomical areas
or specified sexual activities; or
(vii) Modeling studio. "Modeling studio" means a business that provides, for
pecuniary compensation, monetary or other consideration, hire or reward, figure models who,
for the purposes of sexual stimulation of patrons, display "specified anatomical areas" to be
observed, sketched, photographed, painted, sculpted or otherwise depicted by persons paying
such consideration. "Modeling studio" does not include schools maintained pursuant to
standards set by the State Board of Education. "Modeling studio" further does not include a
studio or similar facility owned, operated, or maintained by an individual artist or group of
artists, and which does not provide, permit, or make available "specified sexual activities."
(b) Adult material. "Adult material" means books, magazines, periodicals, or other printed
matter, or photographs, films, motion pictures, video cassettes, slides, tapes, records, disks, or other
� forms of visual or audio representations which are distinguished or characterized by an
emphasis upon
� the depiction or description of specified sexual activities and/or specified anatomical areas.
(c) Adult-oriented business operator or Operator. "Adult-oriented business operator" or
"Operator" means a person who supervises, manages, inspects, directs, organizes, controls or in an
y
other way is responsible for or in charge of the premises of an adult-ori
ented business or the conduct
or activities occurring on the premises thereof.
(d) Adult-oriented businessperformerorPerformer. "Adult-oriented business performer"or
"Performer" means a person who, with or without compensation, publi
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cly performs specified sexual
activities or publicly displays specified anatomical part
s in adult-oriented businesses.
(e) Applicant. "Applicant" means a person who is required to file an
application for a permit
� under this chapter, including an individual owner, managing partner, officer of a corporation, or an
y
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other operator, manager, employee, or agent of an Adult -Oriented Business.
(t) Bar. "Bar" means any commercial establishment licensed by the State Department of
Alcoholic Beverage Control to serve any alcoholic beverages on the premises.
(g) Chief of police. "Chief of police" means the chief of police of the city or the chief s
authorized representative.
(h) Distinguished or characterized by an emphasis upon. "Distinguished or characterized by
an emphasis upon" shall mean and refer to the dominant or essential theme of the object described by
the phrase. For example, when the phrase refers to films that are "distinguished or characterized by an
emphasis upon" the depiction or description of specified sexual activities or specified anatomical
areas, the films so described are those whose dominant or predominant character and theme are the
depiction of the enumerated sexual activities or anatomical areas.
(i) Entertainer. "Entertainer"meansanypersonwho is an employeeorindependentcontractor
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 anadult-oriented business. The term
"entertainer" also includes all adult-oriented business performers.
(j) Figure model. The term "figure model" means any person who, for pecuniary
compensation, consideration, hue or reward, poses in a modeling studio to be observed, sketched,
painted, drawn, sculptured, photographed or otherwise depicted.
(k) Health offi
cer. "Health officer" means the chief of police of the city or his or her duly
authorized representative.
(Z) Nudity or a state ofnudity. "Nudit}�' ora "state ofnudity" means the showing ofthe human
male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing
of the female breast with less than a fully opaque covering of any part
of the nipple, or the showing
of the
covered male genitals in a discernible turgid state.
(m) Operate an adult-oriented business. "Operate anadult-oriented business" means the
supervising, managing, inspecting, duetting, organizing, controlling or in any way being
adult-oriented business.
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responsible
for or in charge of the conduct of activities of an adult-oriented business or activities within an
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(n) Person. "Person" means any individual, partnership, copartnership, firm, association, joint
stock company, corporation, or combination of the above in whatever form or character.
(o) Regularly features. "Regularly features" with respect to an a theater, adult motion
Ficture theater, or adult cabaret means a regular and substantial course of conduct. The fact that live
performances which are distinguished or characterized by an emphasis upon the display of specified
anatomical areas or specified sexual activities occurs on two (2) or more occasions within a thirty (30)
day period; three (3) or more occasions within a sixty (60) day period; or four (4) or more occasions
within a one hundred and eighty (180) day period, shall to the extent permitted by law be deemed to
be a regular and substantial course of conduct.
(p) Semi-nude. "Semi-nude" means a state of dress in which clothing covers no more than the
genitals, pubic region, buttocks, areola of the female breast, as well as portions of the body covered
by supporting straps or devices.
(q) Specified anatomical areas. "Specified anatomical areas" means any of the following:
(i) Less than completely and opaquely covered human (A) genitals orpubic region; (B)
buttocks; or (C) female breast below a point immediately above the top of the areola; or
(ii) Human male genitals in a discernibly turgid state, even if completely and opaquely
covered; or
(iii) Any device, costume or covering that simulates any of the body parts included in
subsections (i) or (ii) above.
(r) Specified sexual activities. "Specified sexual activities" means any of the following,
whether performed directly or indirectly through clothing or other coveri
ng:
(i) The fondling or other erotic touching of human genitals, pubic region, buttocks,
anus, or female breast; or
or
(ii) Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;
(iii) Masturbation, actual or simulated; or
(iv) Excretory functions as part
of or in connection with any of the other activities
described in subdivisions (i), (ii), or (iii) of this subsection.
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10.58.020 Permits required.
(a) It is unlawful for any person to engage in, conduct or carryon, or to permit to be engaged
in, conducted or carried on, in or on any premises in the city, the operation of an adult-oriented
business unless the person first obtains and continues to maintain in fall force and effect an adult-
oriented business regulatory permit ("business permit") from the city as required by this chapter.
(b) It is unlawful for any person to engage in or participate in any live performance depicting
specified anatomical areas or involving specified sexual activities in anadult-oriented business unless
the person first obtains and continues in full force and effect anadult-oriented business performer
permit ("performer permit") from the city as required by this chapter.
Article 2. Application and Permits
10.58.025 Adult-oriented business regulatory permit application submittal.
Any person who proposes to maintain, operate, or conduct anadult-oriented business in the
city shall file an original and two (2) copies of an application with the chief of police upon a form
provided by the city and shall pay a filing fee, as established by resolution adopted by the city council
from time to time, which shall not be refundable.
10.58.030 Application contents.
(a) Adult-oriented business regulatory permits are nontransferable, except in accordance with
section 10.58.045. A11 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, and att
ach a copy of
the partnership agreement, if any.
(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 stan
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ding under the laws of its state of
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incorporation, 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, a duly authorized officer of the business entity or an individual with a ten (10)
� percent or greater interest in 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 business permit is
� requested and the proposed address where the adult-oriented business will operate, plus the names and
addresses of the owners and/or lessors of the adult-oriented Business site.
(e) The address to which notice of action on the application and all further notices regarding
the application or permit are 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 10.58.020 to obtain an adult-oriented
business performer permit.
(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 certificate and straight-line drawing prepared within thirt
y (30) days prior to the
application that depicts the geographic location of the adult-oriented business with the following:
(1) The building and the portion thereof to be occupied by the adult-oriented business; an
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d
(2) The property lines of an
y other adult-oriented business within 300 feet of the primary
entrance of the adult-oriented business for which the business permit is being requested; an
d
(3) The property lines of an
y school, athletic field, residential zone, or use within 500 feet of
the primary entran
ce of the adult-oriented business for which the business permit is being requested.
(i) A diagram of the off-street parking areas an
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business, including the location of the lighting systems required by section 10.58.070 below.
(j) If the chief of police determines that the application is incomplete, the chief of police shall
promptly notify the applicant of such a fact and, on request of the applicant, grant the applicant an
extension of time of ten (10) days or less to complete the application properly. In addition, the
applicant may request an extension, not to exceed ten (10) days, of the time for the chief of police to
act on the application. The time period for granting or denying a business permit shall be stayed during
the period in which the applicant is granted an extension of time.
(k) The fact that an applicant possesses other types of federal, state, or city permits, licenses,
or other approvals does not exempt the applicant from the requirement of obtaining an adult-oriented
business regulatory permit under this chapter.
10.58.035 Investigation and action on application.
(a) Upon receipt of a completed application and payment of the application and permit fees,
the chief of police shall immediately stamp the application as received and promptly investigate the
information contained in the application to determine whether the applicant shall be issued an adult-
oriented business regulatory permit.
(b) Within thirt
y (30) days of receipt of the completed application, the chief of police shall
complete the investigation, grant or deny the application in accordance with the provisions of this
section, and so notify the applican
t as follows:
(1) The chief of police shall wri
te or stamp "Granted" or "Denied" on the application and date
and sign such notation.
(2) If the application is denied, the chief of police shall attach to the application a statement
of the reasons for denial.
(3) If the application is granted, the chief ofpolice shall attach to the application an adult-
oriented business regulatory permit.
(4) The application as granted or denied and the business permit, if any, shall be placed in the
United States mail, first class postage prepaid, addressed to the applican
application.
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t at the address stated in the
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(c) The chief of police shall grant the application and issue the adult-oriented business
regulatory permit if the chief finds:
(1) The proposed business meets the locational criteria of chapter 25.76; and
(2) The applicant has met all ofthe development and performance standards and requirements
of section 10.58.070 below; and
(3) The application is not otherwise deniedpursuant to section 10.58.040 below. The permittee
shall post the business permit conspicuously in the adult-oriented business premises.
(d) If the chief of police grants the application or if the chief neither grants nor denies the
application within thirty (30) days after it is stamped as received (except as provided in section
10.58.030), the applicant may begin operating the adult-oriented business for which the business
permit was sought, subj ect to strict and continuous compliance with the development and performance
standards and requirements of this chapter.
10.58.040 Permit denial.
The chief of police shall deny the application if the chief finds any of the following:
(a) The building, structure, equipment, or location used by the business for which an adult-
� oriented business regulatory permit is required does not comply with the requirements and standards
of the health, zoning, fire and safety laws of the city as set forth in this code, San
Mateo County, or
the State of Californ
ia; or
(b) The applicant or the applicant's employee, agent, partner, director, officer, shareholder or
manager has knowingly made any false, misleading or fraudulent statement of materi
al fact in the
application for an
adult business regulatory permit; or
(c) The applican
t is under eighteen (18) years of age; or
(d) The required application fee has not been paid; or
(e) The adult-ori
entedbusinessdoes not comply with the locational standardsofchapter25.76
� of this code; or
(f) The adult-oriented business does not comply with the perforrnance standards and
� requirements of these regulations.
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10.58.042 Permit expiration and renewal.
(a) Each adult-oriented business regulatory permit shall expire one (1) year from the date of
issuance, and maybe renewed only by filing with the chief of police a written request for renewal,
accompanied by the annual permit fee and a copy of the permit to be renewed. The written request
for renewal shall update all information contained in the original application, such as additional
performers.
(b) The request for renewal shall be made at least thirty (30) days before the expiration date
� of the business permit. When made less than thirty (30) days before the expiration date, the expiration
of the business permit will not be stayed.
(c) Applications for renewal shall be acted on as provided herein for action upon applications
� for permits.
� 10.58.045 Transfer ofadult-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
as stated in the permit approved by the chief of police.
(b) A permittee shall not transfer ownership or cent
the address of the adult-oriented business
of anadult-oriented business or transfer
an adult-oriented business regulatory permit to another person unless and until the tran
sferee obtains
an amendment to the business permit from the chief of police stating that the transferee is now the
permittee. To apply for such an amendment, the permittee and the transferee shall file an application
for transfer in the form and containing the information described in section 10.58.030 above together
with the signature of the permittee and accompanied by a transfer fee in an amount set by resolution
of the city council. The amendment application shall be processed and reviewed by the chief of police
in accordance with sections 10.58.030 to 10.58.040 as if the transferee were apply for an original
business permit.
(c) No business permit may be transferred when the chief of police has notified the permittee
� in writing that the permit has been suspended or revoked.
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(d) Any attempt to transfer a permit either directly or indirectly in violation of this section is
hereby declared void, and the business permit shall be deemed revoked.
10.58.050 Adult-oriented business performer permit required.
(a) No person shall engage in or participate in any live performance depicting specified
� anatomical areas or involving specified sexual activities in anadult-oriented business, without a valid
adult-oriented business performer permit ("performer permit") issued by the city.
(b) No operator shall employ or allow a performance at an adult-oriented business by any
person as a performer or entertainer who is required to obtain a performer permit under this chapter
unless that performer or entertainer has first obtained approval of a performer permit pursuant to this
chapter.
(c) Any person who has been issued anadult-oriented business regulatory permit pursuant to
this chapter shall promptly supplement the information provided as part of the application for the
adult-oriented business permit required by this chapter with the name of each performer required to
obtain a performer permit pursuant to this chapter within thirty (30) days of any change in the
information originally submitted. Failure to submit such changes within this time period shall be
grounds for suspension of the adult-oriented business regulatory permit, and if the failure is repeated,
shall be grounds for revocation of the permit.
� 10.58.050 Adult-oriented business performer permit process.
(a) Any person who wishes to be anadult-ori
ented business performer in the city shall file an
original and two (2) copies of an application with the chief ofpolice upon a form provided bythe
city
and shall pay a filing fee, as established by resolution adopted by the city council fr
om time to time,
which shall not be refundable.
(b) The completed application shall contain the following information and be accompanied
� by the Following documents:
(1) The applican
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cant; and
t's legal name and any other names (including "stage names" and aliases) used
� by the appli
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(2) Age, date and place of birth; and
(3) Height, weight, hair and eye color; and
(4) Present residence address and telephone number; and
(5) Whether the applicant has ever been convicted of:
(i) Any of the offenses set forth in Sections 243.4, 266a, 266b, 266c, 266e, 266f,
266g, 266h, 2661,
266j, 267, 311.10, 311.11,
313.1,
314, 315, 316,
647(a),
647(b), 647(d),
653.22 and 653.23
of the California Penal
Code as
those sections now
exist
or may hereafter
be amended or renumbered; or
(ii) The equivalent of the aforesaid offenses outside the State of
California; and
(6) Whether such applicant is or has ever been licensed or registered as a prostitute, or
otherwise authorized by the laws of any other jurisdiction to engage in prostitution in such other
jurisdiction. If the applicant 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; and
(7) Driver's license number or other identification number; an
d
(8) Satisfactory written proof that the applican
t is at least eighteen (18) years of age; and
(9) The applicant's fingerprints on a form provided by the police depart
ment, and a color
photograph clearly showing the applicant's face. Any fees for the photographs and fingerpri
nts shall
be paid by the applicant.
(c) If the chief of police determines that the application is incomplete, the chief ofpolice shall
promptly notify the applicant of such a fact and, on request of the applicant, grant the applican
t an
extension of time of ten (10) days or less to complete the application properly. In addition, the
applicant may request an extension, not to exceed ten (10) days, of the time for the chief of police to
act on the application. The time period for granting or denying a business permit shall be stayed during
the period in which the applicant is granted an extension of time.
(d) The fact that an applicant possesses other types of federal, state, or city permits, li
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or other approvals does not exempt the applicant from the requirement of obtaining an adult-oriented
business performer permit under this chapter.
10.58.055 Investigation and action on application.
(a) Within ten (10) days after receipt of the properly completed application for a performer
Fermit, the chief of police shall grant or deny the application and so notify the applicant as follows:
(1) The chief ofpolice shall write or stamp "Granted" or "Denied" on the applicarion and date
� and sign such notation.
(2) If the application is denied, the chief of police shall attach to the application a statement
I of the reasons for denial.
(3) If the application is granted, the chief of police shall attach to the application an
adult-oriented business performer permit.
(4) The application as granted or denied and the perniit, 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.
(b) The chief of police shall grant the application and issue the performer permit unless the
� application is denied for one or more of the reasons set fort
h in subsection (d) below.
(c) If the chief of police grants the application or if the Chief of
police neither grants nor
denies the appli
cation within five (5) business days after it is stamped as received (except as provided
in section 10.58.050), the applicant may begin performing in the capacity at the business for which the
performer permit was sought.
(d) The chief of police shall deny the application if the chief finds any of the following:
(1) The applicant has knowingly made any false, misleading, or fr
audulent statement of a
material fact in the application for a permit or in any report
or document required to be filed with the
appli
cation; or
(2) The applicant is under eighteen (18) years of age; or
(3) The performer permit is to be used for performing in a business prohibited by State,
County, or city law; or
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(4) The applicant has been registered or licensed in any state or country as a prostitute during
the last five (5) years; or
(5) The applicant has been convicted of any of the offenses enumerated in section 10.58.050
above or convicted of anoffense outside the State of California that would have constituted any of the
described offenses if committed within the State of California. However, a performer 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 and the applicant has successfully completed all terms and
conditions of the offense's probation or parole and is no longer on probation or parole.
10.58.057 Expiration and renewal of performer permit.
(a) Each performer permit shall expire one (1) year from the date of issuance, and maybe
renewed only by filing with the chief of police a written request for renewal, accompanied by the
annual permit fee and a copy of the permit to be renewed. The written request for renewal shall
update all information contained in the original application.
(b) The request for renewal shall be made at least thirty (30) days before the expirafion date
ofthe performerpermit. When made less than thirty (30) days before the expiration date, the expiration
of the performer permit will not be stayed.
(c) Applications for renewal shall be acted on as provided herein for action upon applicati
ons
its.
for
10.58.060 Suspension or revocation of adult-oriented business regulatory permits and adult-
orientedbusiness performed permits.
(a) An adult-oriented business regulatory permit or performer permit maybe suspended or
revoked in accordance with the procedures an
d standards of this section.
(b) On determining that grounds for permit suspension or revocation exist, the chief ofpolice
shall furnish written notice of the proposed suspension or revocation to the permittee. Such notice shall
set forth the time and place of a hearing, and the ground or grounds upon which the heari
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ng is based,
the pertinent code sections, and a brief statement of the factual matters in support
thereof. The notice
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shall be mailed, postage prepaid, addressed to the address of the permittee on file with the chief of
police, or shall be delivered to the permittee personally, at least ten (10) days prior to the hearing date.
Hearings shall be conducted in accordance with procedures established by the chief of police, but at
a minimum shall include the following:
(1) All parties involved shall have a right to offer testimonial, documentary, and tangible
evidence bearing on the issues; maybe represented by counsel; and shall have the right to confront and
witnesses.
(2) Any relevant evidence maybe admitted that is the sort of evidence upon which reasonable
persons are accustomed to rely in the conduct of serious affairs.
(3) Anyhearing under this section may be continued for a reasonable time for the convenience
of a party or a witness as determined by the chief of police.
(c) Apermittee maybe subject to suspension or revocation ofthe permit, or be subject to other
appropriate regulatory action, for any of the following causes arising from the acts or omissions of a
business regulatorypermittee, or an employee, agent, partner, director, stockholder, or manager ofthe
permittee business:
(1) The permittee has knowingly made any false, misleading or fraudulent statement of
material facts in the application for a permit, or in any report or record required to be fi
led with the city
or County of San Mateo; or
(2) The permitt
ee, employee, agent, partner, director, stockholder, or manager ofthe permittee
adult-oriented business has knowingly allowed orpermitted, and has failed to make areasonable effort
to prevent the occurrence of any of the following on the premises of the adult-oriented Business, or
in the case of an adult-oriented business performer, the permittee has engaged in one of the activities
described below while on the premises of an adult-oriented business:
(A) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation; or
(B) Use of the establishment as a place where unlawful solicitations for sexual intercourse,
sodomy, oral copulation, or masturbation openly occur; or
(C) Any conduct constituting a criminal offense which requires registration under Section 290
of the California Penal Code; or
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(D) The occurrence of acts of lewdness, assignation, or prostitution, including any conduct
constituting violations of Sections 315, 316, or 318 or Subdivision b of Section 647 of the California
Penal Code; or
(E) Any act constituting a violation of provisions in the California Penal Code relating to
obscene matter or distribution of harmful matter to minors, including but not limited to Sections 311
through 313.4; or
(E) Any conduct prohibited by this chapter; or
(3) Failure to comply with any condition imposed on the permittee related to use of the
business permit or performer permit by government action whether under this chapter or another
provision of federal, state, county, or city law, ordinance, or regulation.
(d) After holding the hearing in accordance with the provisions of this section, if the chief of
police finds and determines that there are grounds for disciplinary action, the chief of police shall
impose one of the following as measured by the chief against the severity, longevity, and repetition
of the violations:
(1) A warning; or
(2) Imposition of conditions that directly relate to and correct the violations involved; or
(3) Suspension of the permit for a specified period not to exceed six (6) months; or
(4) Revocation of the permit.
The chief may combine a suspension with imposition of conditions as the chief may determine is
appropriate. The chief s decision is final unless timely appealed pursuan
t to section 10.58.065.
10.58.065 Appeal of denial, suspension or revocation.
(a) Upon denial of an
application for an adult-oriented business regulatory permit or a
performer permit, or after denial ofrenewal of such a permit, or after suspension or revocation of such
a permit, the applicant or the permittee may seek review of this administrative action within fifteen
(15) days after notice thereof by filing with the city clerk a written notice of appeal.
(b) Tobe effective, the notice of appeal shall briefl
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y state the grounds relied upon for appeal.
Cl The city clerk shall cause the matter to be set for hearing before the city man
ager within
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fifteen (15) days from the date of receipt of the notice of appeal, giving the appellant not less than five
(5) working daysnotice in writing of the time and place of hearing.
(d) The hearing before the city manager shall be conducted in Lite same manner as the hearing
provide pursuant to section 10.58.060 above, and the city manager affirm, modify, or reverse the
decision of the chief of police. The findings and determination of the city manager made following
this hearing shall be final and conclusive. Within five (5) working days after the hearing, the city
manager shall give written notice of the manager's findings and decision.
(e) If the denial, suspension or revocation is affirmed on review, the applicant or permittee
may seek prompt judicial review of such administrative action pursuant to California Code of Civil
Procedure Section 1094.5. The city shall make all reasonable efforts to expedite judicial review if
sought by the applicant or permittee.
Article 3. Facilities and Employees.
10.58.070 Adult-oriented business development and performance standards.
The following provisions applyto all adult-oriented businesses unless otherwise specified, and
shall be deemed conditions of any approved adult-oriented business regulatory permit. Failure to
comply with these requirements shall be grounds for revocation of an adult-ori
city.
ented business permit:
(a) Maximum occupancyload , fire exits, aisles an
d fire equipment shall be regulated, designed
provided in accordance with the fire code an
d building regulations and standards adopted by the
(b) No adult-oriented business shall be operated in any manner that permits the observation
of any material or activities depicting, descri
bing 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 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.
(c) All off-street parking areas and premise entries of the adult-ori
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ented business shall be
� illuminated from dusk to closing hours of operation with a lighting system that provides an
average
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horizontal illumination of one (1) foot candle of light is maintained on the parking surface and
walkways. The required lighting level is established in order to provide sufficient illumination of the
parking areas and walkways serving the adult-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.
(d) The premises within which the adult-oriented business is located shall provide sufficient
sound -absorbing insulation so that noise generated inside said premises shall not be audible anywhere
on any adjacent property or public right -of --way or within any other building or other separate unit
within the same building.
(e) Except for those businesses also regulated by the California Department of Alcoholic
Beverage Control,anadult-orientedbusinessshallbeopenforbusinessonlybetweenthehoursof8:00
a.m. and midnight on any particular day.
(f) The building entrance to an adult-oriented business shall be clearly and legiblyposted with
a notice indicating that persons under eighteen (18) years of age are precluded from entering the
premises. This notice shall be constructed and posted to the satisfaction of the chief of police or
designee. No person under the age of eighteen (18) years shall be permitted within the premises at any
time. The permittee may elect to restrict entry to persons of greater ages than eighteen (18) years,
particularly if other laws or regulations require such a restriction, and shall legibly post the restrictions
in accordance with this subsection.
(g) All indoor areas of the adult-ori
following provisions:
(1) The interi
ented business within which patrons are permitted, except
rest rooms, shall be open to view by the man
agement at all times.
(h) Any adult-oriented business that is also or includes an
adult arcade, shall comply with the
or of the premises shall be configured in such a manner that there is an
unobstructed view from a man
ager's station of every area of the premises to which any patron is
permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction
equipment. If the premises has two or more manager's stations designated, then the interior of the
premises shall be configured in such a manner that there is an unobstructed view of each area of the
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premises to which any patron is permitted access for any purpose from at least one of the manager's
stations. The view required in this subsection must be direct line of sight from the manager's station;
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(2) The view area specified in this section shall remain unobstructed by any doors, walls,
merchandise, display racks, or other materials at all times. No patron is permitted access to any area
of the premises that has been designated as an area in which patrons will not be perrnitted; and
(3) No viewing room may be occupied by more than one person at any one time; and
(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; and
(5) Customers, patrons, or visitors shall not be allowed to stand idly by in the vicinity of any
such video booths, or to remain in the common area of such business, other than the restrooms, who
are not actively engaged in shopping for or reviewing the products available on display for purchaser
viewing. Signs prohibiting loitering shall be posted in prominent places in and near the video booths;
and
(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;
repeated instances of such conditions are grounds for suspension or revocation of the adult-oriented
business Permit.
(i) A11 interior areas of the adult-oriented business shall be illuminated at a
of the following foot-candles, minimally maintained and
minimum
evenly distributed at ground level:
Area
I Bookstores and
other retail establishments
Theaters an
Arcades
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Foot -Candles
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5 (except during performances, at which times
lighting shall be at least 1.25 foot-candles)
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Motels/Hotels
Modeling studios
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(j) I eadult-orientedbustressshallprovideandmaimainseparaterestroomfacilitiesformale
patrons, customers, visitors, and employees and for female patrons, customers, visitors, and
employees. Male patrons, customers, visitors, and employees shall be prohibited from using the rest
rooms designated for females, and female patrons, customers, visitors, and employees shall be
prohibited from using the rest rooms 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 provisions of this subsection (k) shall not apply to an adult-oriented
business that exclusively sells or rents adult material that is not used or consumed on the premises,
such as an adult bookstore or adult video store, and that does not provide rest room facilities to its
patrons, customers, visitors, or the general public.
(k) The following additional requirements apply to adult-oriented businesses providing live
entertainment depicting specified anatomical areas or involving specified sexual activities. These
provisions are not intended to conflict but only to supplement regulations or conditions applied by the
State Alcohol Beverage Control Commission when such regulations or conditions are applied to the
business:
(1) No entertainer shall perform live entert
ainment 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 entert
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ainer.
(2) The adult-ori
ented business shall provide separate dressing room facilities for entertainers
that are exclusively dedicated to the entert
ainers' use.
(3) The adult-oriented business shall provide an
entrance/exit for entertainers that is separated
by at least thirty (30) feet from the entran
ce/exit used by patrons.
(4) The adult-oriented business shall provide access for entert
ainers between the stage and the
dressing rooms which is completely an
d physically separated from the patrons. If such separate access
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is not physically feasible, the adult-oriented business shall provide a minimum three (3) foot wide walk
aisle for entertainers between the dressing room area and the stage, with a railing, fence or other barrier
separating the patrons and the entertainers capable of and which actually results in preventing any
physical contact between patrons and entertainers.
(5) No entertainer, eitherbefore, during or afterperformances, shall have physical contact with
any patron and no patron shall have physical contact with any entertainer either before, during or after
performances by such entertainer. This subsection (5) shall only apply to physical contact on the
premises of the adult-oriented business.
(6) Fixed rails at least thirty (30) inches in height shall be maintained establishing the
separations between entertainers and patrons required by this subsection (�.
(7) No patron shall directly payor give any gratuity to any entertainer and no entertainer shall
solicit any pay or gratuity from any patron.
(8) No owner or other person with managerial control over anadult-oriented business 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.
(1) Adult-oriented businesses shall employ securi
ty guards in order to maintain the public
peace and safety, based upon the following stan
dards:
(1) Adult-ori
ented businesses featuring live entertainment shall provide at least one (1)
security guard at all times while the business is open. If the occupan
cy limit of the premises is greater
than twenty-five (25) persons, at least one (1) additional security
guard shall be on duty for each
increment of twenty
-five (25) persons.
(2) Securi
ty guards for other adult-oriented businesses may be required if it is determined by
the chief of police that their presence is necessary in order to prevent an
section from occurring on the premises.
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y of the conduct listed in this
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(3) Security guards shall be charged with and expressly authorized to prevent violations of law
and enforce compliance bypatrons, customers, and visitors of the requirements of this chapter and the
business permit. Security guards shall be uniformed in such a manner so as to be readily identifiable
as a security guard bythe public and shall be duly licensed as a security guard as required by applicable
provisions of state law. Security guards shall promptly report any violation of law to the Burlingame
Police Department. No security guard required pursuant to this section shall act as a door person,
ticket seller, ticket taker, admittance person, or sole occupant of the manager's station while acting as
a security guard.
10.58.075 Register and permit number of employees.
Every permittee of anadult-oriented business that provides live entertainrnent depicting
specified anatomical areas or involving specified sexual activities shall maintain a register of all
persons so performing on the premises and their performer permit numbers. This register shall be
available for inspection on the business premises at all times during regular business hours by any
peace officer or the health officer.
10.58.080. Display of permit and identification cards.
(a) Every adult-oriented business shall display at all times during business hours, the business
permit issued to the business together with any conditions place on the permit pursuant to this chapter
in a conspicuous place so that the permit maybe readily seen by all persons upon entering the business.
(b) The chief of police shall provide each adult-ori
ented business performer required to have
a performer permit pursuant to this chapter with an identificati
on card containing the name, address,
photograph and permit number of such performer. An adult-oriented business performer shall have
such card available for inspection by a peace officer or the health officer at all times during which the
person is on the premises of an adult-oriented business.
10.58.085 Employment of and services rendered to persons under the age of eighteen (18) years
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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 permit any person who is not at least eighteen (18) years of age to enter or
remain within the adult-oriented business.
Article 4. Miscellaneous Provisions
10.58.090 Inspection.
An applicant or permittee shall permit representatives of the police deparhment, health
department, fire department, planning department, or other city departments or state or county agencies
to inspect the premises of an adult-oriented business for the purpose of insuring compliance with the
law and the development and performance standards applicable to adult-oriented business, at any time
it is occupied or opened for business. A person who operates an adult-oriented business or the
business's agent or employee is in violation of the provisions of this section if permission for such
lawful inspection of the premises is refused at any time it is occupied or open for business.
10.58.095 Regulations nonexclusive.
The provisions of this chapter are not intended to be exclusive and compliance with this
chapter shall not excuse noncompliance with any other regulations pert
United States.
10.58.100 Employment of persons without permits unlawful.
It is unlawful for any owner, operator, man
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aining to the location,
operation, or conduct of businesses adopted by the city, County of San
Mateo, State of California, or
ager, permittee or other person in charge of or in
control of an adult-oriented business to allow any person to perform any live entert
35
ainment depicting
speced anatomical areas or involving speced sexual activities who soot
in possession of a valid,
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unrevoked and unsuspended adult-oriented business performer permit.
10.58.105 Time limit for filing application for permit.
All persons who possess an outstanding business license heretofore issued for the operation
of anadult-oriented business and all persons required by this chapter to obtain anadult-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 depicting specified anatomical areas or specified sexual activities in
an adult-oriented business after such time without a permit shall constitute a violation of this chapter.
10.58.110 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, orphrase thereof irrespective of the
fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be
declared unconstitutional, or invalid, or ineffective.
code.
Section 4. Anew subsection 10.60.060(c) is added to read as follows:
(c) An adult-oriented business operating in conforman
ce with chapters 10.58 and 25.76 ofthis
Section 5. Section 25.36.045 is amended to read as follows:
25.36.045 Prohibited uses.
Uses not listed as permitted or conditional in this district or any district subarea shall be
prohibited, including:
(a) Uses of an
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wrecking establishments;
(b) Massage, bathing or similar establishments;
(c) Adult-oriented businesses as defined in chapter 25.76;
(d) Psychic services.
(e) Warehouses for storage of furniture, household, personal, or other similar articles or
outdoor commercial storage.
Section 6. Section 25.38.035 is amended to read as follows:
25.38.035 Prohibited uses.
Uses not listed as permitted or conditional shall be prohibited including:
(a) Uses of any industrial nature, including, but not limited to junkyards and automobile
wrecking establishment;
(b) Massage, bathing or similar establishments;
(c) Adult-oriented businesses as defined in chapter 25.76;
(d) Psychic services;
(e) Warehouses for storage of furniture, household, personal, or other similar articles or
outdoor commercial storage, except automobile storage as allowed pursuant to this chapter.
Section 7. Section 25.41.020 is amended to read as follows:
25.41.020 Permitted uses.
The following uses are permitted in the waterfront commercial district:
(a) Commercial recreation uses such as, but not limited to, bowling alleys, ice rinks, marinas
and related boat sales and supplies, but expressly prohibiting outdoor motion picture theaters and golf
driving ranges; permitted uses may include the sale of merchandise and items which are related to the
principal use;
(b) Restaurants;
(c) Motels and hotels: facilities provided may include meal and beverage services, barber and
beauty shops, smoke shops, automobile rental desks to serve onlyhotel guests so long as the operation
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does not use parking required for primary hotel use, convention and meeting facilities, and similar
services which are clearly incidental and accessory to provision of lodging accommodations; and no
more than one dwelling unit within the motel or hotel structure that is used exclusively by the owner
or manager of the motel or hotel;
(d) Clubs, associations, lodges and similar uses;
(e) Public recreation areas;
(f) Office uses;
(g) Travel agents;
(h) Adult-oriented businesses that meet all of the requirements of chapter 25.76 and 10.58 of
this code.
Section 8. Subsection 25.41.025(j) is amended to read as "Psychic services." and subsection
25.41.025(1) is deleted.
Section 9. Section 25.42.030 is amended to read as follows:
25.42.030 Prohibited uses.
The following uses shall be prohibited in the mixed commercial -residential district:
(a) Retail food establishments and bakeries;
(b) Takeout and drive-in services;
(c) Offices;
(d) Auto sales;
(e) Massage, bathing, tanning or similar establishments;
(f) Adult-oriented businesses as defined in chapter 25.76.
Section 10. Section 25.43.040 is amended to read as follows:
25.43.040 Prohibited uses.
The following uses are prohibited:
(a) Automobile rental uses in office, office /warehouse or warehouse structures;
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(b) Automobile sales lots;
(c) Automobile wrecking, junkyards, storage or baling of scraps, paper, rags, sacks or metals;
(d) Free standing food establishments on properties fronting Beach and Lang Roads;
(e) Gas stations and auto repair including auto body work;
(f) Public advertising billboards;
(g) Residential uses and buildings, except as permitted under section 25.43.030 (12);
(h) Roof signs;
(i) Adult-oriented businesses as defined in chapter 25.76 or massage, bathing or similar
establishments;
(j) Any use determined to be obnoxious or offensive;
(k) Residential hotels;
(0 Psychic services.
Section 11. Section 25.44.040 is amended to read as follows:
25.44.040 Prohibited uses.
All uses not listed as permitted or conditional shall be prohibited, including:
(a) Adult entert
ainment business or massage, bathing, tanning or similar establishments;
(b) Automobile wrecking, junk yards, storage or baling of scraps, paper, rags, sacks or metals;
(c) Conference and exhibition facilities;
(d) Hotels and motels;
(e) Public advertising billboards;
(f) Living quarters and residential structures, except as provided in subsection 25.44.030(17);
(g) Outdoor storage or treatment of materials in required parking or in landscaping in the front
setback;
(h) Psychic services.
Section 12. California Bnvironmental Quality Act finding.
The City Council finds that this ordinance is enacted in order to mitigate the threat posed to
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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 would create any significant adverse
environmental impact under the California Environmental Quality Act, and therefore the adoption of
this ordinance is exempt from CEQA pursuant to Section 15061 (b)(3) of the CEQA guidelines.
Section 13. Effective date.
This ordinance shall go into effect and be in full force and operation thirty (30) days after its
final passage and adoption.
Section 14. This ordinance shall be published according to law.
Mayor
I, ANN T. MUSSO, City Clerk of the City of Burlingame, do hereby certify that the foregoing
ordinance was introduced at a regular meeting of the City Council held on the 5� day of January,
2004, and adopted thereafter at a regular meeting of the City Council held on the 20' day of January,
2004, by the following vote:
AYES: COUNCILMEMBERS: BAYLOCK, COFFEY, GALLIGAN, NAGEL, O'MAHONY
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
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ity Clerk