HomeMy WebLinkAbout11/12/1997PLANNING COMMISSION AGENDA NOVEMBER 12, 1997 7:00 P.M. South Coast Air Quality Management District Auditorium 21865 East Copley Drive Diamond Bar, California Chairm, an Vice Chairtnan Commissioner Commissioner Commissioner Joe Ruzicka Don Schad Franklin Fong Mike Goldenberg Joe McManus Copies of staff reports or other written documentation relating to agenda items are on file in the Planning Division of the Dept. of Community 6L Development Services, located at 21660 E. Copley Drive, Suite 190, and are available for public inspection. If you have questions regarding an agenda item, please call (909) 396-5676 during regular business hours. In an effort to comply with the requirements of Title 11 of the Americans with Disabilities Act of 1990, the City of Diamond Bar requires that any person in need of any type of special equipment, assistance or accomodation(s) in order to communicate at a City public meeting must inform the Dept. of Community & Development Services at (909) 396-5676 a minimum of 72 hours prior to the scheduled meeting. FR MUPCAGENDAGED Pfease refrain from smoking, eating or drinking The City of Diamond Bar uses recycled paper in the Auditorium and encourages you to do the same. PLANNING COMMISSION CITY OF DIAMOND BAR Monday, November 12, 1997 AGENDA Next Resolution No. 97-14 CALL TO ORDER: 7:00 p.m. PLEDGE OF ALLEGIANCE: 1. ROLL CALL: COMMISSIONERS: Chairman Joe Ruzicka, Vice Chairman Don Schad, Mike Goldenberg, Franklin Fong, and Joe McManus 2. MATTERS FROM THE AL'DIENCE/PUBLIC COMMENTS: This is the time and place for the general public to address the members of the Planning Commission on any item that is within their jurisdiction, allowing the public an opportunity to speak on non-public hearing and non - agenda items. Please complete a Sneaker's Card for the recording Secretary (Completion of this form is voluntary). There is a five minute maximum time limit when addressing the Planning Commission, 3. CONSENT CALENDAR: The following items listed on the consent calendar are considered routine and are approved by a single motion. Consent calendar items may be removed from the agenda by request of the Commission only: 3.1 Minutes of October 14 and 27, 1997 4. OLD BUSINESS: None 5. NEW BUSINESS: None 6. CONTINUED PUBLIC HEARINGS: 6.1 Vesting Tentative Tract Map No. 50314, Conditional Use Permit No. 96-1, Oak Tree Permit No. 96-1 and Zone Change 96-1 (pursuant to Code Sections Title 21, and Title 22.56.215, 22.26 Part 16 and 22.16 Part 2) are requests to approve a 15 lot subdivision on approximately 44 acres. The average lot size will be 2.92 acres. Six of the proposed lots are part of two approved tracts. Therefore, VTTM 50314's development will result in a net increase of 13 residential lots. The project site is within Los Angeles County Significant Ecological Area No. 15. The Zone Change will convert the current zoning of R-1,200 and A-2-2 to R-1-40,000. (Continued from October 27, 1997.) Project Address: Southeast of the most southerly intersection of Steeplechase Lane and Wagon Train Lane. Project Owner/Applicant: Kurt Nelson, Windmill Development, 3480 Torrance Blvd., Suite 300, Torrance, CA 90503 NOVEMBER 12, 1997 PLANNING COMMISSION AGENDA 1 Environmental Determination: Pursuant to the provisions of the California YEnvironmental Quality Act (CEQA), the City has determined that an Environmental Impact Report is required for this project. An Environmental Impact Report No. 97-1 (SCH No. 96071104) has been prepared and is available for public review. RECOMMENDATION: Staff recommends that the Planning Commission continue the public hearing for VTTM 50314, Zone Change No. 96-1, Conditional Use Permit No. 96-1, Oak Tree Permit No. 96-1 and Mitigation Monitoring- Program and EIR No. 97-1 (SCH 96-0711104) to December 9, 1997. 6.2 Draft Development Code (Zoning Code Amendment ZCA 97-1 and Negative Declaration No. 97-3) Review of all Articles of the Draft Development Code, Draft Subdivision Code, and Draft Design Guidelines. RECOMMENDATION: Staff recommends that the Planning Commission discuss the information contained within the staff report addressing sign regulations, adult business regulations, view protection, and Negative Declaration No. 97-3. and direct staff as appropriate. 7. PUBLIC HEARINGS: None 8. PLANNING COMMISSION ITEMS: 9. INFORMATIONAL ITEMS: Metricom Ricochet Micro -Cellular Data Network 10. SCHEDULE OF FUTURE EVENTS: TRAFFIC & TRANSPORTATION - November 13, 1997 - 7:00 - AQMD Board Hearing Room, 21865 E. Copley Drive. CITY' COUNCIL - Tuesday, November 18, 1997 - 6:30 p.m. - AQMD Auditorium, 21865 E. Copley Drive TRAFFIC & TRANSPORTATION - November 20, 1997 - 6:30 p.m. - Heritage Park Community Center - 2900 South Brea Canyon Road PARKS & RECREATION COMMISSION - Thursday, November 20, 1997 - 7:00 p.m. - AQM:D Board Hearing Room, 21865 E. Copley Drive. TOWN HALL MEETING - November 22, 1997 - 9:00 a.m. to 12:00 noon - Economic Revitalization Plan - Castle Rock Elementary Multipurpose Room - 3975 Castle Rock Road PLANNING COMMISSION - Wednesday, November 25, 1997 and Tuesday November 25, 1997 - 7:00 p.m. - AQMD Auditorium, 21865 E. Copley Drive 11. ADJOURNMENT: November 25, 1997 NOVEMBER 12, 1997 PLANNING COMMISSION AGENDA 2 MINUTES OF THE CITY OF DIAMOND BARS REGULAR MEETING OF THE PLANNING COMMISSION OCTOBER 14, 1997 CALL TO ORDER: Chairman Ruzicka called the meeting to order at 7:08 p.m. in the South Coast Air Quality Management Auditorium, 21865 East Copley Drive, Diamond Bar, California. PLEDGE OF ALLEGIANCE: The Pledge of Allegiance was led by River Mclntoush. ROLL CALL: Present: Chairman Ruzicka, Vice Chairman Schad, and Commissioners Fong, Goldenberg and McManus Also Present: Deputy City Manager James DeStefano, Senior Planner Catherine Johnson, Associate Planner Ann Lungu and Planning Technician Susan Cole. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: Bob Zirbes, Diamond Bar Improvement Association, asked the Planning Commission to reschedule its October 28, 1997 meeting in order for the Commission's three City Council candidates to participate in the Diamond Bar Chamber of Commerce forum. Sam Saffari spoke about the withdrawn SunCal project (agenda Item 6.1). He asked the Planning Commission to establish a moratorium on single family residential developments in the City of Diamond Bar. Chair/Ruzicka asked that the record reflect that Mr. Saffari was allowed additional speaking time for purposes of this item. River McIntoush talked about the large amount of traffic on the City's streets. Gary Neeley, Executive Director, Diamond Bar Caucus, stated that with respect to agenda Item 6.2, he received information that a Planning Commissioner's wife is working for Windmill Development. He said he knows for a fact that Mr. Schad has, in fact, participated in the discussion regarding this project. If a regional bypass road was built around Tonner Canyon, it would be financed using Windmill Development monies. He indicated he anticipates a prosecutable conflict of interest in this instance. He said he would like to know if this particular Commissioner's wife does work for the developer. He stated he has asked the Commissioner through City On -Line and he has refused to answer. Mr. Neeley said that if the information is true, he feels the Commissioner who has spoken against building in Tonner Canyon and against building a regional bypass road should recuse himself from discussions regarding the project. -- DCM/DeStefano responding to public comment, stated that the SunCal project has been withdrawn by the applicant. If the applicant 10/14/97 Verbatim Gary Neeley Planning Commission Public Comments: Neeley: "Good Evening. My name is Gary Neeley. I'm the Executive Director of the Diamond Bar Caucus. Our offices are at 1155 S. Diamond Bar Boulevard, Suite R, Diamond Bar, CA. It came to my attention recently that, well, first of all, there's an item on your agenda, number 6.2 that discusses a project in Tonner Canyon that I understand is going to have a continuance on it this evening. But before that happens, before you get to that agenda item if you are going to have a continuance I'd like to discuss that at this point in time, much like they're discussing SunCal because there's going to be a continuance there. Is that okay?" Ruzicka: "Fine with me, Mr. Neeley." Neeley: "Recently I received some information that said that one of the wives of one of your colleagues is working for that developer. I.know for a fact that this particular Planning Commissioner, Mr. Schad, has, in fact, participated in the discussion regarding this project. This project is the only development in Tonner Canyon. Mr. Schad of course, is well known for his ""save Tonner Canyon"" diatribes. The gentleman before me talked about the problem that we're having with traffic. I think we all know, who have been around for awhile, that if we were fortunate enough to get a regional bypass road around Tonner Canyon that it would, in fact, and it has been professionally documented, that it takes 30,000 cars a day off the surface streets of Diamond Bar. we're talking Diamond Bar Boulevard and Grand Avenue, the very problem this gentleman (Mr. McIntoush and Mr. Saffari) was just talking about - 30,000 cars a day. If, in fact that road was built in or around Tonner Canyon, it would have to be financed through developer fees. Developer fees for those developers who are developing in Tonner Canyon. The very same people that are employing one of your board member's wives. The very board member who has spoken against not only building in Tonner Canyon but building this road. I see a direct -conflict of interest. here. A prosecutable conflict of interest here. I'd like to know whether this particular Planning Commissioner's wife does truly work for this developer. I've asked him in a public forum on city on-line and he's refused to answer me. I find myself, I don't normally like to come down to the microphone and participate in this manner, but I can't get an answer any other way. Mr. Chairman, could you determine an answer to that question and whether or not your colleague there has a conflict of interest. I think it is that important. We need to solve the traffic problem and having somebody whose wife is being paid by the only developer in Tonner Canyon stand up and stop the solution to our traffic problem and piously cry ""save Tonner Canyon"" in his next breath is just appalling to me. Could you find out the answer to that question for me, Mr. Chairman?" Ruzicka: "Thank you very much, Mr. Neeley." OCTOBER 14, 1997 PAGE 2 PLANNLN'G- CO--M*rgSION __ --- chooses to reapply, property owners surrounding the proposed development will be noticed via the public hearing notice procedure. DCM/DeStefano indicated that issues related to traffic impacts effecting Diamond Bar are largely a result of neighboring city buildouts. The City continues to mitigate the cumulative effect of projects within adjacent communities such as Chino Hills and the City'of Industry. DCM/'DeStefano stated that from time to time, Planning Commissioners and City Council Members may have a conflict of interest on a particular project. They are responsible for disclosing the conflict of interest with legal counsel and for recusing themselves from any discussion and decision making process related to the project. Commissioners, Council Members and staff receive regular updates regarding the status of the law regarding conflict of interest issues. Questions should be forwarded to the City Attorney. C/McManus asked if since Mr. Schad has already sat through two hearings on the Windmill Development project, I believe we have a right to know if, in fact, there is a conflict of interest or not, and if his wife is in the employ of JCC or one of their associates, then we have a right to know. CONSENT CALENDAR: 1. Minutes of September 23, 1997. 2. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DIAMOND BAR DENYING CONDITIONAL USE PERMIT NO. 97-3, A REQUEST TO ALLOW THE SALE OF BEER AND WINE IN AN EXISTING MINI -MART AT THE CHEVRON GAS STATION AT 21324 PATHFINDER ROAD, DIAMOND BAR, CALIFORNIA. C/Goldenberg moved, C/McManus seconded, to approve Consent Calendar Items 1.1 and 1.2. The motion was carried 5-0 with the following Roll Call vote: AYES: COMMISSIONERS: NOES: COMMISSIONERS: ABSENT: COMMISSIONERS: Following discussion regarding Commission meeting, the. Commission matters to October 27, 1997. OLD BUSINESS - None NEW BUSINESS: - None CONTINUED PUBLIC HEARINGS: Goldenberg, McManus, Fong, VC/Schad, Chair/Ruzicka None None the October 28, 1997 Planning concurred to continue unresolved OCTOBER 14, 1997 PAGE 3 PLAI`� C -0M JSSI9N� � 1. General Plan Amendment No. 96-2, Vesting Tentative Tract Map No. 52267, Vesting Tentative Tract Map No. 52308, Conditional Use Permit No. 96-13, Conditional Use Permit No. 96-16, Oak Tree Permit No. 96-3 and Oak Tree Permit No. 96-5. Pursuant to Code Sections Title 21 - Subdivision, 22.56.215 -Part 1, Hillside Management Area, Hillside Management Ordinance No. 7 (1992) and 22.26 -Part 16 -Oak Tree Permit, the project request consists of the following: a) VTTM No. 52267, Conditional use Permit No. 96-13 and Oak Tree Permit No. 96-3 is proposed for 130 single family detached residential dwelling units clustered on approximately 65 acres of a 339.3 acre site. The development is proposed as a private, gated community. Lots will range in size from 6,000 square feet to 26,000 square feet. The gross proposed density is 0.4 dwelling units per acre with a net density of approximately 2.06 dwelling units per acre; and b) VTTM No. 52308, General Plan Amendment No. 96-2, Conditional Use. permit No. 96-16 and Oak Tree Permit No. 96-5 is proposed for 60 single-family detached residential dwelling units clustered on approximately 36.7 acres of the 86.3 acre site. The development is proposed as a private, gated community. Lots will range in size from 8,000 square feet to 41,750 square feet. The gross proposed density is 0.7 dwelling units per acre with a net density of approximately 1.63 dwelling units per acre. Additionally, the project includes a General Plan Amendment to allow additional residential development in excess of 130 dwelling units within General Plan Planning Area 2, and the removal of deed and map restricts and the potential for acquisition of publicly owned property adjacent to Pantera Park. Property Address: VTTM No. 52267 is generally located east of Diamond Bar Boulevard and north of Grand Avenue. VTTM No. 52308 is generally located northeast of Pantera Drive and south of Bowcreek Drive. City of Diamond Bar, California. Applicant: SunCal Companies, 550 W. orangethorpe Avenue, Placentia, California 92806 The Developer has requested that the project be withdrawn. Staff recommends that the letter of withdrawal be received and filed. OCTOBER 14, 1997 PAGE 4 P LAKkl-NG! CtwitissI©N4 --� C/McManus addressed Mr. Saffari's comments regarding this project as follows: "Yes, Mr. Safarri, you started out talking about the honesty, candor and forthrightness of the City. I have a flyer here that was printed up and passed out in your neighborhood that has some gross misrepresentations in it. It says here ""last chance - last hearing I'll and it keeps hammering on that same thing - last chance, last hearing and that was for the last meeting which is, in fact, the first chance and the first hearing. Some people who live up there also told me that they understood SunCal bought that property for $150,000. I will tell you right now that if you can get that property for $150,000, I will buy it and donate it to the City. No problem. So there's a lot of gross misrepresentations that are going on within your own group. Also, you asked why the announcement was sent out - the yellow sheet - since there was no announcement that it was being continued. It was announced here at a public meeting. Therefore, we had to send that announcement out. The City had to send to send that announcement out. And I believe, and Mr. DeStefano can confirm this, the piece of property that you're talking about, the big piece of property, at the point in time that it was sold, was sold with a Memorandum of Understanding in place which means that whoever bought it had a right to develop it under certain constraints. You said something about 65 homes. The one I read said 130. I will defer to Mr. DeStefano to answer that. But they have a legal right, when they bought the property it was already approved, to develop that part of it. And the property is in private hands. Would you want somebody to come in and say okay, we're going to take your land away and destroy your home because we want a park here. Think about that. I happened to have lived here for 18 years. And I live right off Grand Avenue. So Mr. McIntoush, you talk about the traffic, I hit it every morning. And it takes me sometimes - I have a business here in Diamond Bar - and it's less than a mile away from my home. It sometimes takes me 15 minutes to get home in the evening. When they wanted to broaden that corner - widen Diamond Bar and Grand - I was unalterably opposed to it. I feel if you build wider lanes then you bring more traffic and sure enough, it did. But most of that traffic does come from out of the community. Now we need to work on something to resolve that specific problem - to get that traffic from other communities off of our streets. And long before we became a City, a bypass cut -through Tonner Canyon was ;proposed. And I remember the Highway Patrol coming down to a municipal advisory counsel meeting that they had dome a study that (concluded) the minute Grand Avenue was opened, it would be at 110 percent capacity. So we knew it before we were incorporated. So, as Mr. Fong is pointing out, a lot of that flows from past leadership - the mistakes they made, shortsightedness, all that sort of thing. And we don't want, and I don't OCTOBER 14, 1997 PAGE 5 P LANNI-ka) (3``OMM-T-S S I oN1 want those hills developed either, in all candor. I would rather see it all remain open space. But, somebody has invested money in it. And if we can't reimburse them for it, we need to find an amicable solution. Some way to work it out.,, C/McManus continued: "And I do believe with all my heart and soul that Mr. Schad owes an explanation to the Community of Diamond Bar about his wife working for a developer that has a project down here." The Commission concurred to receive and file the applicant's letter of withdrawl. 2. Vesting Tentative Tract Map No. 50314, Conditional Use Permit No. 96-1, Oak Tree Permit No. 96-1 and Zone Change 96-1 (pursuant to Code Sections Title 21, and Title 22.56.215, 22.26 Part 16 and 22.16 Part 2) are requests to approve a 15 lot subdivision on approximately 44 acres. The average lot size will be 2.92 acres. Six of the proposed lots are part of two approved tracts. Therefore, VTTM 50314's development will result in a net increase of 13 residential lots. The project site is within Los Angeles County Significant Ecological Area No. 15. The Zone Change will convert the current zoning of R-1-20,000 and A-2-2 to R-1-40,000. Continued from August 26, 1997.' Project Address: Southeast of the most southerly intersection of Steeplechase Lane and Wagon Train Lane. Project Owner/Applicant: Kurt Nelson, Windmill Development, 3480 Torrance Boulevard, Suite 300, Torrance, CA 90503 Due to the applicant's request for a continuance to October 28, 1997, staff recommends that the Planning Commission continue the public hearing to. October 27, 1997. Chair/Ruzicka reopened the public hearing. Gary Neeley asked VC/Schad if his wife is now or ever 4hasbeen employed by the project developer. VC/Schad responded "NO". C/McManus moved, C/Fong seconded, to continue Vest Tentative Tract Map No. 50314, Conditional Use Permit No. 96-1, Oak Tree Permit No. 96-1 and Zone Change 96-1 to October 27, 1997. The motion was carried 5-0. 10/14/91 -ITC Minutes - Page S Ga !Heeley/Don Schad exchange under Windtill Project discussion:,, Neeley: "I'm just amazed that first of all, Mr. Schad, you haven't answered the question. Does your wife -1 work for the developer or doeew t. she work for the developer? If she doesn't, just lean forward to the microphon and say no, she doesn't." Schad: "No. Is that it?" Weeley: "She.does not work in any way, aay capacity, is any way shape or form, she's not. on the pe roll for JCC, Jack Cameron, any of_his.derivities? Is that r_�Vht? Rover has been." Schad: "Paul, turn up the volume.!! This man's -having trouble hearing." Feeley: ■I take it that's a no? ;we'll look into that. we'll have the district attorney look ir�to that, Mr.iSchad. Thank you very much." Ruzicka. "Thank you, Mr. Heeley.", OCTOBER 14, 1997 PAGE 6 PLANNI- G, E©M*I SIoN _ V,z 3. General Plan Amendment No. 96-1, Tentative Parcel Map No. 24646, conditional Use Permit No. 96-14 and Oak Tree Permit No. 96-4 (pursuant to Code Sections Title 21 - Subdivision, Hillside Management Ordinance No. 7 (1992) and Part 16-22.26 Oak Tree Permit). The subject request proposes to change the General Plan land use designation for 5.88 acres within a 132 acre parcel located in a gated community identified as "The Country Estates". The land use designation will change from Open Space to Rural Residential. The remaining 126.12 acres will continue as Open Space. The proposal includes: subdividing the 5.88 acres into four lots, each a minimum of one acre, for the eventual development of four single family custom homes; the removal and replacement of oak and walnut trees; and the removal of a map restriction. Property Address: Easterly side of Blaze Trail across from the intersection of Timbertop Lane. Property Owner/ Diamond Bar Country Estates Association, Applicant: 22615 Lazy Meadow Drive, Diamond Bar, California 91165 Staff recommends that the Planning Commission continue the public hearing on General Plan Amendment No. 96-1, Tentative Parcel Map No. 24646, Hillside Management Conditional Use Permit No. 96-14 and Oak Tree Permit No. 96-4 to January 27, 1998. Chair/Ruzicka opened the public hearing. Art O'Daly asked if the Planning Commission received the requested information regarding "The Country Estates" Homeowners Association survey. He asked if there is a reason this item is being continued to January 27, 1998. DCM/DeStefano explained that the applicant requested this matter be continued to January 27, 1998. AP/Lungu responded to C/Fong that the applicant indicated that approximately 300 homeowners were surveyed. Of those who responded, 80 percent were in favor of proceeding with the development by obtaining revenue from the project's sale to build new recreational facilities, and 20 percent were in favor of a personal assessment. Frank Shu spoke in favor of the project. C/McManus moved, VC/Schad seconded, to continue General Plan Amendment No. 96-1, Tentative Parcel Map No. 24646, Conditional Use Permit No. 96-14 and Oak Tree Permit No. 96-4 to January 27, 1998. The motion was carried 4-1 with the following Roll Call vote: OCTOBER 14, 1997 PAGE 7 PLANNI-I ) Cb1M ss ION - AYES: COMMISSIONERS: McManus, VC/Schad, Goldenberg, Chair/Ruzicka NOES: COMMISSIONERS: Fong ABSENT: COMMISSIONERS: None 4. Draft Development Code (Zoning Code Amendment 2CA 97-1 and Negative Declaration No. 97-3). Review of all Articles of the Draft Development Code, Draft Subdivision Code, and Draft Design Guidelines. DCM/DeStefano explained that the Subdivision Code will be presented at a future Commission meeting as a separate document. Chair/Ruzicka reminded staff that the following items were discussed and agreed upon by the Commission:. Adult Businesses - the Commission concurred that the code should be the most restrictive code permitted by law; Signs - that signs should include the maximum amount of English permitted under the law; View Protection - the Commission concurred that the Laguna Beach Ordinance was appropriate to Diamond Bar; and, with respect to Tree Preservation and Protection, Item A. under Exemptions on Page III -131 was revised to the following language (See August 26, 1997 Planning Commission minutes): "Trees, except those designated by the City Council as a historical or cultural tree, and trees required to be preserved, relocated or planted as a condition of approval of a discretionary permit, located on all developed properties prior to adoption of this Development Code." SP/Johnson presented the updated Draft Development Code and explained the document revisions. C/Goldenbercy said he believes the Commission agreed to require 4" inch digits with respect to address numbers (Article III - Page 117, Table 3-X, Section I "Additional Requirements"). DCM/DeStefano responded to Chair/Ruzicka that the 4" requirement does not effect any other portion of the Development Code. C/McManus asked about the standard required for curbside digits. Following discussion, the. Commission concurred to require 910" x 1910" (nine feet by nineteen feet) commercial parking spaces with no provisions for compact parking spaces. Bob Zirbes said he supports the Commission's recommendation for larger parking stalls. OCTOBER 14, 1997 PAGE 8 PLANk1*O,`/ N)MAJOS I ONL -J Ed MacDonald suggested that the Commissioner consider a 10 foot residential side yard setback to allow for additional on-site parking. DCM/Destefano referred Mr. MacDonald to Page II -11 of the proposed Development Code. The table suggests a minimum residential side yard setback of five (5) feet on one side and 10 feet on the other side with a minimum requirement of 15 feet between dwelling units. In addition, a minimum three (3) feet safety clearance is required. C/Fong asked that cross-references - pages to figures and figures to pages - be cited in connection with (Figures). ie, Page III -13, 22.16.090 setback Regulations and Exceptions 4. b., last line (Figure 3-3). C/Fong asked that dimensions be included in the Figures. ie, figure at the top of Page III -14 appears to lack an indication of a five (51) Imaginary Rear Property Line setback. C/Fong asked that the following be in Paragraph 4.under B. Grading standards on Page III -44: "Exploratory trenches and access roads should be properly backfilled and erosion treatment and revegetation be provided.." The Commission concurred. C/Fong asked that ", except individual detached single- family residences" be removed from the first sentence of A. under Applicability on Page III -65. The Commission concurred. C/Fong again discussed Paragraph A. under 22.38.060 Exemptions on Page III -148. Following discussion, the Commission referred to the August 26, 1997 minutes which state the Commission's concurrence that the language read as follows: "Trees, except those designated by the City Council as a historical or cultural tree, and trees required to be preserved, relocated or planted as a condition of approval of a discretionary permit, located on all developed properties prior to adoption of this Development Code." VC/Schad asked that consistent with the General Plan, "arroyo" be included in Paragraph B. under 22.38.030 - Protected Trees so that it reads: "Native oak, walnut, sycamore, arroyo willow, and naturalized California Pepper trees with a DBH of eight inches or greater." DCM/DeStefano responded that staff will check the paragraph and advise if the insertion is appropriate. The Commission concurred with C/Fong to change the second sentence of the second paragraph entitled DBH under D. OCTOBER 14, 1997 PAGE 9 PLANNING�/COMM SGS ION--= Definitions, "D". to read as follows: 'The diameter of a tree trunk measured in inches at a height of 4.5 feet at the aye -age point of the natural grade, etc." VC/Schad again asked that Paragraph 3, Item B. under 22.38.130 Tree Replacement Relocation Standards be changed to include certified arborist. DCM/DeStefa.no referred VC/Schad to the Definitions Chapter Article VI, Page VI -5 of the Development Code. C/Goldenberg reminded the Commission that it had requested staff to provide them with a copy of the Laguna Beach View Protection Ordinance for possible adoption. DCM/DeStefano responded that the matter was most recently discussed by the Laguna Beach City Council on October 7, 1997 for first reading of the Ordinance. The council was concerned that the proposed ordinance was a potential "bureaucratic nightmare". He indicated staff will review the matter and present the Commission with an update at its October 27, 1997 meeting. VC/Schad moved, C/McManus seconded, to continue the Draft Development Code, Draft Citywide Design Guidelines, and Negative Declaration No. 97-3, and, if appropriate, adopt the Resolutions recommending City Council approval, and continue the Hearing Subdivision Code review to October 27, 1997. PUBLIC HEARING - None PLANNING COMMISSION ITEMS: DCM/DeStefano responded to C/Goldenberg that due to VC/Schad's request for information regarding the Department of Fish and Game's Code 1600 Permitting Process, as is customary, copies were provided to all Commissioners. INFORMATIONAL ITEMS: DCM,/DeStefano reported that at its October 7, 1997 meeting, the City Council approved distribution of a bid package for construction of traffic signals at Golden Springs Drive at Calbourne Drive, and !Diamond Bar Boulevard at Palomino Drive. DCM/D6Stefano stated he.approved two new residential construction projects for JCC Development and a residential addition within "The Country Estates". DCM/DeStefano indicated that the Traffic and Transportation Commission is continuing to pursue the School Traffic Study. DCM/DeStefano revealed that at its October 7, 1997 meeting, the City Council agreed to appoint two City Council Members, two Parks OCTOBER 14, 1997 PAGE 10 PLANNING COMMISSION and Recreation Commissioners, and two members from each school district to a Parks Master Plan priority and funding implementation plan subcommittee. DCM/DeStefano reported that the California Legislature approved and the Governor signed Assembly Bill 1226 co-sponsored by Assemblyman Miller which allows Diamond Bar to receive an additional two year's subvention which amounts to approximately $2,000,000. SCHEDULE OF FUTURE EVENTS as listed in the agenda. ADJOURNMENT: There being no further business to come before the Planning Commission, Chair/Ruzicka adjourned the meeting at 10:02 p.m. to Monday, October 27, 1997 at 7:00 p.m. in the South Coast Air Quality Management District Auditorium. Respectfully Submitted, James DeStefano, Secretary Attest: Joe Ruzicka Chairman i MINUTES OF THE CITY OF DIAMOND BAR REGULAR MEIETING OF THE PLANNING COMMISSION OCTOBER 27, 1997 CALL TO ORDER: Chairman Ruzicka called the meeting to order at 7:17 p.m. in the South Coast Air Quality Management Auditorium, 21865 East Copley Drive, Diamond Bar, California. PLEDGE OF ALLEGIANCE: The Pledge of Allegiance was led by Commissioner Fong. ROLL CALL: Present: Chairman Ruzicka, and Commissioners Fong, Goldenberg and McManus Vice Chairman Schad arrived at 7:25 p.m. Also Present: Deputy City Manager James DeStefano, Senior Planner Catherine Johnson, Associate Planner Ann Lungu and Planning Technician Susan Cole. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: None CONSENT CALENDAR: 1. Minutes of October 14, 1997. This matter was continued to November 12, 1997. OLD BUSINESS - None NEW BUSINESS: 1. Planned Sign Program No. 97-2 is a request for two wall mounted identification signs at the Countryside Suites. Property Location: 21951 Golden Springs Drive, Diamond Bar, CA Property Owner/ Ayres Holding Group, 355 Bristol Applicant: Street #A, Costa Mesa, CA 92626 PT/Cole presented staff's report. Staff recommends that the Planning Commission approve Planned Sign Program No. 97-2, Findings of Fact and conditions as listed within the resolution. Chair/Ruzicka asked if the sign application will come before the Planning Commission at a later date. DCM/DeStefano responded that the sign application does not need to come before the Planning Commission according to the standards in the Sign Code. Chair/Ruzicka asked if this sign or any future signs will have any detrimental effect on the residents of homes on the ridge OCTOBER 27, 1997 PAGE 2 PLANNING COMMISSION overlooking the Gateway Corporate Center which has, in the past, created concerns about view and lighting. DCM/DeStefano stated that based upon what staff knows about the proposed signage and lighting, staff believes that they would cause no detrimental effect to the residences above and to the east of the site. Chair/Ruzicka asked for public comment. There was no one present who wished to speak on this item. C/McManus stated the following: "At the last Planning Commission meeting, Mr. Schad was asked if his wife was on the payroll of a developer that had a project before this committee. Mr. Schad said "NO". There has been a lot of information come to light since that meeting. All of it leads me to believe, along with everyone else, that he did not tell the truth. The matter is now under investigation by the FPPC and I believe that anything he (Mr. Schad) participates in on this Commission from this day forward until this matter is resolved, would be tainted. So I would ask that Mr. Schad step down from the Commission." Chair/Ruzicka asked for clarification of the procedure from this point. DCM/DeStefano responded that there has been an allegation of conflict of interest. Apparently, that allegation has been forwarded to the appropriate authorities, the FPPC and the District Attorney. There should be some conclusion brought forth by those investigatory agencies on the matter. That will be some time from now. commissioner Schad who can speak for himself on this matter has previously indicated that he did not have the conflict of interest that was represented at the last Planning Commission meeting. Chair/Ruzicka stated the following: "The Chair is extremely concerned about the Commission's reputation and what it does on all issues. We are handling a number of very important issues for the City including the Development Code. If any Commissioner who sits on this panel is under any legal scrutiny or doubt, I would not want that to reflect on any decision that this Commission is making. If you believe that Vice Chairman Schad's participation in a vote on this issue will not reflect on whether this total Commission is doing the right thing, then we can proceed. However, I don't want anyone's participation on any issue to cloud what we do here. We are people who are giving of our time and talent to make sure that we do the best things for this City. And any Commissioner who makes a decision to participate in these proceedings should do it with a lot of thought and with honesty in his heart." C/McManus stated the following: "If in fact he (Mr. Schad) has taken money from a developer while sitting up here on an issue or project that that developer brought before the OCTOBER 27, 1997 PAGE 3 PLANNING COMMISSION Commission then it stands to reason that if he would do it once he might do :it other times. Therefore, any decision that he might be involved in that this Commission might make would be tainted. And if in fact they find him guilty of it, then any decisions that we may make may be up for reversal in the event that someone should want to do that. I don't think we need to do that to any of the people in this community." Chair/Ruzicka: "Are there any additional comments from Commissioners?" C/Goldenberg: "Mr. Chairman, I have no doubt in my mind that Mr. Schad is doing whatever he is doing that he feels is in the best interest of this community. I have a problem only with respect to the fact that the community, City Council and administration is going to look at any decision that we make as ,a possible tainted decision because of the conditions that surrounds Mr. Schad's allegations. Whether they are true or not is immaterial at this time. The problem is that all of us are going to be put in that light. And I don't think the other four Commissioners should be subject to that type of scrutiny, and I would respectfully request that Commissioner Schad temporarily remove himself from the dais until the matter is cleared up." Chair/Ruzicka: "Vice -Chairman Schad, did you have anything to respond to these allegations?" Vice -Chairman Schad: "I have nothing to respond at this time." C/Goldenberg: "Mr. Chairman, if we're about to take a vote on an item not necessarily pertaining to this subject, do you not feel that the outcome of that vote is going to be possibly tainted with the participation of a Commissioner that has this cloud hanging over him? And that's my concern at this time. Not necessarily what it does for us that are sitting up here, but our reputations in the community and the decisions that we make have to have the trust of the community. I find it real difficult to continue on with this if these are the allegations that are going to be sitting there. Perhaps, if Mr. Schad would like to hear from anybody in the audience to support his contention, he may want to consider bringing someone up and :Let them speak as to the possibility of impropriety." C/Fong: "This issue right here is kind of a surprise to me. I wasn't aware of this discussion right here. I understand from the last Planning Commission meeting about the allegation about Vice Chairman Schad might have taken money from a developer, etc. That's something I couldn't prove myself and I have not investigated myself personally what has happened and tonight we have an issue right here on a sign that is a very simple matter and I don't understand how Mr. Schad's allegation is connected with this little simple issue here - how it could taint our decision. I understand he should be up OCTOBER 27, 1997 PAGE 4 PLANNING COMMISSION here with integrity to vote on matters. I guess for us as far as we're concerned, we each here have our own conscience and we're doing what we believe is right. And we're acting at the highest honor we can for the City's benefit. And whether Mr. Schad wants to vote on this issue or not is'up to him. He has to decide whether he wants to do it or not. But it should not really effect you or I or anyone up here. Otherwise, it could effect any of us. I just feel like right now..." Chair/Ruzicka: "As the Chairman, I just want to make sure that you understand where the discussion is right now. The discussion is as to the validity of this Commission as a whole. We have a responsibility to the people of this City to make sure that our decisions are made under no cloud. And I believe that when one Commissioner is under a cloud it reflects on the rest of us. In the end, the more important thing is that it reflects on all of the decisions that we make after that cloud has been recognized and brought forward. And that's what we're trying to determine here. Any decisions that we make now with Mr. Schad's vote included, could possibly be questioned later on and we don't want that. Especially in view of the very important work that we're doing over and above the current issue that is facing us." C/Fong: "What I'm saying here is that we're not up here to be judgmental of any person up here. We're not up here to judge any allegations that Mr. Schad is guilty. I think it's up to him whether he wants to vote on this or not. But I don't think we should feel what he did, whether it's right or wrong, would have an effect on us personally or on this Commission. I think we're taking this little matter here and making a big deal out of it." C/McManus: "Unfortunately, the community doesn't view it that way. They view it that if one of us is taking money from a developer then all of us could be. And if you take it from one you might be taking it from all of them. So it does reflect because I've already had a lot of telephone calls and questions about this and so I've done some investigation on my own. If nobody would really mind, I really hate to do.this, but I'd like to ask Mr. (Kurt) Nelson to come down. I'd like to ask him a question." Chair/Ruzicka: "Mr. Nelson." Mr. Nelson approached the podium. C/McManus: "Mr. Nelson, has you or your company, or any of your associates ever had Mrs. Schad or any family member of Mr. Schad's in their employ in the last year?" Mr. Nelson: "Yes, we have." C/McManus: "Thank you." OCTOBER 27, 1997 PAGE 5 PLANNING COMMISSION C/Goldenberg: "Mr. Chairman, if sitting within this Commission making decisions, I would ask to Commissioner Schad insists on with the intent of possibly be excused." C/McManus: "Me, too." Chair/Ruzicka: "Vice Chairman Schad." VC/Schad: "Many people who are running for office have taken money from this gentleman right there. And I don't see that I should be singled out as the one individual receiving money from this gentleman up here at the microphone." Kurt Nelson: "Mr. Chairman, could I, I mean I really didn't want to get involved in this. If I could just speak briefly." VC/Schad: "It's because of you that it has become involved." Chair/Ruzicka: "First of all, before we get into that, there's a difference between being on the payroll of a developer and receiving political contributions under the legal limit from a variety of people who happen to be developers. And if we can get that issue addressed properly, and the distinction made between the two, there's a difference between being on the payroll, in the employ of a developer and accepting political contributions, all of which were under the legal limit for those contributions." Kurt Nelson: "Yeah. What I would like to say, and I really need to be brief, and I think everybody here, at least on the dais, and I think probably everybody in this room, maybe not some of you watching at home, is probably aware of a great deal more of the detail of this. Inasmuch as the matter has been, I believe, turned over to the Fair Political Practices Commission, I think it would be a mistake for me to comment on behalf of my company very much further than I'm going to do right now except to say that everybody here on this dais and virtually everybody in the City of Diamond Bar whose opinion I and my company really care about knows about the relationship, what it was, when it stopped, what it was not. And for me to comment further at this time I don't think would serve any really good purpose. I'm terribly sorry to see you all struggling with this right now. I can tell you that, to the best of my ability, the best of my understanding, you can probably take care of the present matter before you right now but if you choose not to, that's between you five gentlemen. I don't want to comment too much further since the FPPC will be involved. All of you know how I feel and you know what my company's stance was on this several months ago. All of you do. If, perhaps, the best thing would be in the course of the FPPC investigation, if any one of you or two of you or however many would not be a violation of the Brown Act, would like to get together with Commissioner Schad and myself and any other representative of my company, that would be best. I really wish I had something really articulate to offer to clear this up, but you know where I stand. Hell, everybody with access OCTOBER 27, 1997 PAGE 6 PLANNING COMMISSION to the Internet knows where I stand, and my company. I'm so sorry that it's come to this and unless you have any further questions I think it's probably best that I sit down." Chair/Ruzicka: "Thank you very much, Mr. Nelson. Commissioner McManus and Commissioner Goldenberg, I don't want you to leave until you are sure that this is the action we should take. We do have issues before us that can be completed. I believe that in any case, whether Mr. Schad is, however that case is handled, I believe if enough is said about where the rest of us are at on this issue, I don't believe our integrity will be compromised when we make this .decision. I believe we can make decisions on the other items that don't pertain to this particular item and move on and keep the work going of this Commission. It would be shameful to jeopardize the hard work we've done for a long time - for the past year, almost - working on the Development Code because of this issue. I think we can continue working, but that decision will have to be yours." C/McManus: "Yes. I believe there's an old cliche that if you lie down with dogs you get fleas. There's no question anymore as to whether Mr. Schad's family took the money and whether or not he lied. Even if he took it (the money) , if he hadn't lied, that would be another issue. The problem I have at this point as Mr. Fong was pointing out, when we sit up here we're suppose to have integrity and we should be as unimpeachable as we can possibly be. At this point in time, we have a member that has definitely tainted the Commission and I agree that we need to move forward with this stuff, but the problem is, that one person refuses to step down and we're all tainted with that thing. We're all painted with the same brush. Everybody here knows that because they've been involved in politics long enough to know that that's the way it works. Whether you like it or not, that's the way it works. So, my decision stands that if he stays, I go." C/Goldenberg: "I have to issue Commissioner McManus's sentiments." Chair/Ruzicka: "Commissioner Schad, I guess it's up to you. Do you intend to continue in this meeting tonight? If you do, we will lose two Commissioners." VC/Schad: "What are your plans, Mr. Chairman." Chair/Ruzicka: "My plans I don't think are relevant. You have to make the decision, sir." VC/Schad: Well, I'm going to remain." At 7:45 p.m., Commissioner McManus and Commission Goldenberg left the dais in protest of the continued participation of Vice Chairman Schad. OCTOBER 27, 1997 PAGE 7 PLANNING COMMISSION Chair/Ruzicka: "Let the record also reflect that the Chairman is remaining not because of the fact that he believes one way or the other on the issue. The Chairman believes that that issue will take its own course and I do not intend for anyone to question my integrity and I do not intend for anybody to intimidate me or threaten me with any type of information that I am either in or on the payroll of anybody whether he's a developer or has an issue before this Commission. If that can't be stated any stronger, that's the reason why I'm in this campaign for elected office because one of the current sitting Council Members has tainted this City with his brand of dishonesty. And now it's rubbing off on the good work we could all be doing for this City." Chair/Ruzicka asked for a motion regarding Planned Sign Program No. 97-2. C/Fong moved, Chair/Ruzicka seconded, to approve Planning Sign Program No. 97-2. The motion was carried 2-0-1 with the following Roll Call vote: AYES: COMMISSIONERS: Fong, Chair/Ruzicka NOES: COMMISSIONERS: None ABSTAIN: COMMISSIONERS: VC/Schad ABSENT: COMMISSIONERS: Goldenberg, McManus CONTINUED PUBLIC HEARINGS: 1. Vesting Tentative Tract map No. 50314, Conditional use Permit No. 96-1, Oak Tree Permit No. 96-1 and Zone Change 96-1 (pursuant to Code Sections Title 21, and Title 22.56.215, 22.26 Part 16 and 22.16 Part 2) are requests to approve a 15 lot subdivision on approximately 44 acres. The average lot size will be 2.92 acres. Six of the proposed lots are part of two approved tracts. Therefore, VTTM 50314's development will result in a net increase of 13 residential lots. The project site is within Los Angeles County Significant Ecological Area No. 15. The Zone Change will convert the current zoning of R- 1,200 and A-2-2 to R-1-40,000. (Continued from October 14, 1997) . Project Address: Southeast of the most southerly intersection of Steeplechase Lane and Wagon Train Lane. Project owner/Applicant: Kurt Nelson, Windmill Development, 3480 Torrance Boulevard, Suite 300, Torrance, CA 90503 Staff recommends that the Planning Commission continue the public hearing for VTTM 50314, Zone Change No. 96-1, Conditional Use Permit No. 96-1, Oak Tree Permit No. 96-1 and Mitigation Monitoring Program and EIR No. 97-1 (SCH 96- 0711104). At 7:50 p.m., VC/Schad left the dais. OCTOBER 27, 1997 PAGE 8 PLANNING COMMISSION Chair/Ruzicka asked VC/Schad if he was recusing himself from this item. There was no response for the record. Chair/Ruzicka asked for advise with respect to continuing this matter. DCM/DeStefano stated that the Commission has lost its quorum and its ability to discuss this matter. Chair/Ruzicka asked if the Commission can continue to discuss any other items on the agenda. DCM/DeStefano stated the Commission may not continue unless VC/Schad returns to the dais thus restoring a quorum. RECESS: Chair/Ruzicka recessed the meeting at 7:55 p.m. RECONVENE: Chair/Ruzicka reconvened the meeting at 8:13 p.m. DCM/DeStefano explained that due to lack of quorum, the Commission does not have the ability to make any decision regarding Continued Public Hearing Item No. 1. Therefore, staff recommends that the Commission move to the next item on its agenda. 2. Draft Development Code (Zoning Code Amendment ZCA 97-1 and Negative Declaration No. 97-3). Review of all Articles of the Draft Development Code, Draft Subdivision Code, and Draft Design Guidelines. Staff recommends that this matter be continued to the November 12, 1997 Planning Commission meeting. Robert Zirbes, a Diamond Bar resident, said he has participated with the Commissioners on the Draft Development Code over the past few months. He indicated he came to tonight's meeting prepared to work toward the document's finality. However, he is somewhat surprised by what has occurred this evening. He recommended that the Development Code be held over until a full Commission is present because of its importance to the City of Diamond Bar. Don Gravdahl concurred with Mr. Zirbes that the Development Code is an important agenda item and if there is any kind of cloud over this Commission, the matter should be continued to the next meeting with the full Commission present. VC/Schad moved, C/Fong seconded, to continue the Draft Development Code discussion to November 12, 1997. The motion was carried 3-0. PUBLIC HEARINGS - None PLANNING COMMISSION ITEMS: OCTOBER 27, 1997 PAGE 9 PLANNING COMMISSION DCM/DeStefano asked for consideration of the following meeting dates for the Planning Commission: November 12, 1997, November 25, 1997, December 9, 1997 and December 23, 1997. Following discussion, the Commission concurred to continue discussion of November and December meeting dates at its regularly scheduled November 12, 1997 meeting. C/Fong asked for status of the proposed relocation of the Australian Tea Leaf tree at the Shell Station site on the northwest corner of Diamond Bar Boulevard at Brea Canyon Road. DCM/DeStefano responded that staff will research the matter and advise the Commission. INFORMATIONAL ITEMS: SCHEDULE OF FUTURE EVENTS as listed in the agenda. ADJOURNMENT: There being no further business to come before the Planning Commission, Chair/Ruzicka adjourned the meeting at 8:28 p.m. to Wednesday, November 12, 1997 at 7:00 p.m. in the South Coast Air Quality Management District Auditorium. Respectfully Submitted, James DeStefano, Secretary Joe Ruzicka Chairman INTEROFFICE MEMORANDUM TO: Chairman and Planning Commissioners FROM: Ann J. Lungu, Associate Planner SUBJECT: Continued public hearing for Vesting Tentative Tract Map No. 50314, Zone Change No. 96-1, Conditional Use Permit No. 96-1 and Oak Tree Permit No. 96-1 DATE: November 4, 1997 The referenced project was on the October 27, 1997 Planning Commission agenda. Due to a lack of quorum no action was taken. As a result, the referenced project is being presented to the Commission at the November 12, 1997 meeting. The applicant is requesting a continuance to November 25, 1997. However, the City's biological consultants are not available on this date. The consultant will be available for the December 9, 1997 Planning Commission meeting. The applicant agrees to continue the referenced project to December 9, 1997. RECOMMENDATION: Staff recommends that the Planning Commission continue the referenced project to December 9, 1997. Attachment: 1. Planning Commission memorandum dated October 22, 1997. IDITEROFFICE MEMORANDUM TO: Chairman and Planning Commissioners FROM: Ann J. Liungu, Associate Planner SUBJECT: Continued public hearing for Vesting Tentative Tract Map No. 50314, Zone Change No. 96-1, Conditional Use Permit No. 96-1 and Oak Tree Permit No. 96-1 DATE: October 22, 1997 The referenced project was presented to the Planning Commission on July 22, 1997. At that _time, the public hearing was opened. Comments were received on the Draft Environmental Impact Report No. 97-1 (SCH 96-071104) and the project entitlement. Since July 22, 1997, the project's public hearing was continued several times per the applicant's request. At the October 14, 1997 Planning Commission meeting,. the Commission continued the project's public hearing to October 27, 1997. Attached is a correspondence from the applicant, Kurt Nelson of Windmill Development Company requesting a continuance to November 25, 1997. KV2E 63YYITV10ZIbl v04103�v Staff recommends that the Planning Commission continue the public hearing for VTTM 50314, Zone Change No. 96-1, Conditional Use Permit No. 96-1, Oak Tree Permit No. 96-1 and Mitigation Monitoring Program and l?IR No. 97-1 (SCH 96-0711104). Attachments: 1. Correspondence from the applicant, dated October 21, 1997. LLC Windmill, In, c. X430 Torrance Blvet., Ste. 300 Torrance, CA $0503 tdePhona (310) 540-3990 jacs"" ' (3x01316-7133 October 21,1997 City of Diamond gar Mr- Jame$ Destefano, Commu 21660, East Development Director Fast Copley Lhive, Ste. 190 Diamond Bar, CA 92765 RE= VTM 50324 - Planning Commission hearings Deur Mr. DeStefano, We respeCthffly request that the above referenced matter be continued to the November 25, 1997 Planning Commission agenda, or as soon thereafter asractical. We. recognize that this is not the first time we have made such ost P request. We therefore agree not to assert any application rights we ay havent e as to timely processing, Iyhether unc[er he California Sui'division Map Act, or the Permit Streamlining Act, wi h respect Quality Act, the resulting from our continuted postponement. pe to the delays Sincerely, Kw' -t Nelson Windmill Development Company cc Ann Lungu INTEROFFICE MEMORANDUM TO: Chairman and Planning Commissioners FROM: Ann J. Lungu, Associate Planner 64__ SUBJECT: Informational Item - Metricom Ricochet Micro - Cellular Data Network DATE: November 4, 1997 The City has received a request from Metricom, a wireless data communications network provider, to allow them to install their communications equipment on existing street light poles within the City's right-of-way. Metricom's "Ricochet" network provides for high speed, low cost, wide area access to on-line services such as the Internet and LAN applications and peer devices. The service provided by Metricom is a w=ireless alternative to telephone line access to the above mentioned services. The Ricochet network operates on the license free portion of the radio spectrum through a network of poletop radios that are clustered in a region to provide complete coverage. The poletop radios are typically installed from one-quarter to two miles apart in a mesh topology. These radio units would be installed on existing Southern California Edison owned (95%) or City owned (5%) light poles. According to Metricom, it is estimated that 66 units would be installed within the City. These units are considered mobile radios as opposed to mobile cellular phones. This mesh topology will include Wired Access Points (WAP) located in the center of each cluster of poletop radios. The WAPs are panels 8 1/2" by 9" by 5/8" thick which would be installed on private property. The radio repeaters are shoe -box in size (12" wide, 10" in diameter by 7 " high) and. mounted just behind the head of the lamp as shown in the attached photograph. As seen from the photograph, the unit is unobtrusive. These units operate at low power levels and support 100 kilobit, (kbps) per second raw speed, typically provide between 10 to 45 kbps of continuous user throughput (depending upon software,, hardware and application runs), and are capable of burst user' speeds to 70 kbps. The Metricom proposal will be presented to the City Council at the next available meeting. If the City Council decides to accept Metricom's proposal, the City will enter into an agreement with Metricom allowing them to install, operate and maintain a wireless data communications radio network on light poles in the public right-of-way per the terms and conditions agreed upon. Additionally, Metricom will be required to obtain an encroachment permit for all work. Attachments: 1. Photographs of an installed radio unit on a light pole. T 1 y? �ry J {� � YC f w s F� J '4 1`F� ite^ tt s c CITY OF DIAMOND BAR INTEROFFICE MEMORANDUM TO: CHAIRMAN AND PLANNING COMMISSION FROM: CATHERINE JOHNSON, SENIOR PLANNER C--5- Enactment and Applicability 22.01 CITY OF DIAMOND BAR INTEROFFICE MEMORANDUM TO: CHAIRMAN AND PLANNING COMMISSION FROM: CATHERINE JOHNSON, SENIOR PLANNER C_:!� SUBJECT: HEARING DRAFT DEVELOPMENT CODE DATE: NOVEMBER 7, 1997 Attached are revised pages of the Hearing Draft Development Code. These changes reflect additional Planning Commission changes from the October 14th meeting and staff "clean-up" changes. Generally, these changes are self explanatory. Where substantive changes have been made an explanation is provided below. Also please note all graphics will be numbered for the City Council draft. Additionally, staff has received the revised Subdivision Code, including the City Attorney's revisions. This draft has been transmitted to the City Attorney, who is reviewing these revisions. The draft will be transmitted as soon as, staff and the City Attorney have completed their review. As a reminder, please note that Planning Commission changes have been shown in a bold extended typeface and staff changes are shown in a bold condensed typeface. Planning Commiission strikeouts without added text are note by an asterisk. Pg. III -32: Item D. Exemption has been added. As originally adopted, the Hillside Management Ordinance contained the following language: Section 6. Exemption Other provisions of this subsection to the contrary not withstanding, lots of record as of the date of adoption of this ordinance shall be entitled to a minimum of one dwelling unit. Single dwelling unit development shall be administered in conjunction with the provisions of Chapter 22.72 of the Diamond Bar Municipal Code (Ordinance No. 5 (1990). This exemption had not been included in the new Code, which meant that the hillside regulations would be enforced even on single lots, possibly depriving steeply sloped lots of the right to develop. The exemption provision has been added in simplified language for clarity. Pg. III -32: 6. Language has been added to clarify that in hillside areas the setbacks are measured from the edge of the pad rather than the property line to ensure there are useable rear yards and an adequate distance between adjacent residences. Pg. III -48: Exemptions A. The corrected language as noted in the October 14, 1997 minutes has been included. However, please note that the new language should be in the bold extended types face to reflect the Planning Commission change. This will be corrected. ATTACHMENTS: Revised pages of Hearing Draft Development Code cj/c:pcmem 1 1 7 CHAPTER 22.01- ENACTMENT AND APPLICABILITY OF DEVELOPMENT CODE Sections: 22.01.010 - Title 22.01.020 - Purpose and Intent of Development Code 22.01.030 - Authority, Relationship to General Plan 22.01.040 - Applicability of the Development Code 22.01.050 - Responsibility for Administration 22.01.010 - Title Title 22 of the Diamond Bar Municipal Code is and may be cited as the Diamond Bar Development Code, hereafter referred to as "this Development Code." 22.01.020 - Purpose and Intent of Development Code The purpose of this Development Code is to implement the policies of the Diamond Bar General Plan by classifying and regulating the uses of land and structures within the City of Diamond Bar. In addition, this Development Code is adopted to protect and to promote the public health, safety, and general welfare of residents, and preserve and enhance the aesthetic quality of the City. To fulfil these purposes, it is the intent of this Development to: A. Provide standards for the orderly growth and development of the City, and promote a stable pattern of land uses; B. Implement the uses of land designated by the Diamond Bar General Plan and avoid conflicts between land uses; C. Maintain and protect the value of property; D. Conserve and protect the natural resources of the City, E. Protect the character, and social and economic stability of residential, commercial, and industrial areas; F. Assist in maintaining a high quality of life without causing unduly high public or private costs for development or unduly restricting private enterprise, initiative, or innovation in design; and G. Provide regulations for the subdivision of land in compliance with the Subdivision Map Act, Title 7, Section 4, Division 2 of the California Government Code (Government Code Sections 66410 et seq.). Diamond Bar Development Code Article I - Purpose and Applicability Hearing Draft - September 1997 I-3 Enactment and Applicability 22.01 22.01.030 - Authority, Relationship to General Plan A. This Development Code is enacted based on the authority vested in the City of Diamond Bar by the State of California, including but not limited to: the State Constitution; the Planning and Zoning Law (Government Code Sections 65000 et seq.); the Subdivision Map Act (Government Code Sections 66410 et seq.); and the California Health and Safety Code. B. This Development Code and the Zoning Map (Section 22.06.030) are the primary tools used by the City of Diamond Bar to implement the goals, objectives, and strategies of the Diamond Bar General Plan, which is the overall policy document of the City, hereafter referred to as the "General Plan." ' 22.01.040 - Applicability of Development Code This Development Code applies to all land uses, structures, subdivisions, and development within the City of Diamond Bar, as provided by this Section. A. New land uses or structures, changes to land uses or structures. Compliance with the requirements of Section 22.02.020 (Requirements for Development and New Land Uses) or, where applicable, Chapter 22.68 (Nonconforming Uses, Structures, and Parcels), is necessary for any person to lawfully establish, construct, reconstruct, alter, or replace any use of land or structure, B. Issuance of Building or Grading Permits. The Building Official or City Engineer, as applicable, may issue building, grading, or other construction permits only when: 1. The proposed land use and/or structure satisfy the requirements of Subsection A. above, and all other applicable statutes, ordinances and regulations; and 2. The Director and City Engineer determine that the site was subdivided in compliance with ). C. Subdivision of land. Any subdivision of land proposed within the City after the effective date of this Development Code shall be consistent with: the minimum lot size requirements of Article II (Zoning Districts and Allowable Land Uses);--Article--V (Sttbdivisions}; and all other applicable requirements of this Development Code. D. Continuation of an existing land use. An existing land use is lawful only when it was legally established in compliance with all applicable regulations, and when it is operated and maintained in compliance with all applicable provisions of this Development Code, including Chapter 22.68 (Nonconforming Uses, Structures and Parcels). Existing land uses that were in violation of City zoning regulations applicable before the effective date of this Development Code, or in violation of the prior Los Angeles County Zoning Ordinance, are in violation of this Development Code. These uses shall continue to be in violation unless they conform to the current provisions of this Development Code. Diamond Bar Development Code Article I - Purpose and Applicability Hearing Draft - October 29,1997 I-4 Enactment and Applicability 22.01 E. Effect of Development Code changes on projects in progress. A land use permit application that has been accepted by the Department as complete prior to the effective date of this Development Code or any amendment shall be processed according to the requirements in effect when the application was accepted as complete. F. Minimum requirements. The provisions of this Title shall be held to be the minimum requirements for the promotion of the public health, safety, and general welfare. Whenever in this Title discretion is vested in a City official or body, that discretion may be exercised so as to impose more stringent requirements as may be necessary to promote orderly land use development and the purposes of this Title. G. Other requirements may still apply. Nothing in this Development Code eliminates the need for obtaining; any permit, approval or entitlement required by other provisions of the Muricipal Code or complying with the regulations of any City department, or any County, regional, State, or Federal agency. H. Conflicting requirements. Any conflicts between different requirements of this Development Code, or between this Development Code and other regulations, shall be resolved in compliance with Section 22.03.020.D (Conflicting Requirements). 22.01.050 - Responsibility for Administration This Development Code shall be administered by the Diamond Bar City Council, Planning Commission, , Hearing Officer, Deputy City Manager and the Community and Development Services Department, in compliance with Chapter xx of the Municipal Code and Chapter 22.22.64 (Administrative Responsibility). Diamond Bar Development Code Hearing Draft - October 29, 1997 Article I -Purpose and Applicability 1-5 Enactment and Applicability 22.01 Diamond Bar Development Code Article I - Purpose and Applicability Hearing Draft - September 1997 1-6 CHAPTER 22.04 - INTERPRETATION OF DEVELOPMENT CODE PROVISIONS Sections: 22.04.010 - Purpose 22.04.020 - Rules of Interpretation 22.04.030 - Procedures for Interpretations 22.04.010 - Purpose of Chapter This Chapter provides rules for resolving questions about the meaning or applicability of any part of this Development Code. The provisions of this Chapter are intended to ensure the consistent interpretation and application of the provisions of this Development Code and the General Plan. 22.04.020 - Rules of Interpretation A. Authority. The Community Development Director or designee of the Director shall have the responsibility and authority to interpret the meaning and applicability of all provisions and requirements of this Development Code. B. Language. 1. Terminology. When used in this Development Code, the words "shall," "will," "is to," and "are to" are always mandatory. "Should" is not mandatory but is strongly recommended; and "may" is permissive. The present tense includes the past and future tenses; and the future tense includes the present. The singular number includes the plural number, and the plural the singular, unless the natural construction of the word indicates otherwise. The words "include," "includes," and "including" mean "including but not limited to ...". 2. Number of days. Whenever a number of days is specified in this Development Code, or in any permit, condition of approval, or notice issued or given as provided in this Development Code, the number of days shall be construed as calendar days, unless, business days are specified. Time limits will extend to the following business day where the last of the specified number of days falls on a day that the City is not open for business, except as otherwise provided for by the Map Act. 3. State law requirements. Where this Development Code references applicable provisions of State lav (e.g., the California Government Code, Act,- Public Resources Code, etc.), the reference shall be construed to be to the applicable State law provisions as they may be amended from time to time. Diamond Bar Development Code Article I - Purpose and Applicability Hearing Draft - October 29, 1997 I-11 Interpretations 22.03 C. Calculations - Rounding. Where provisions of this Development Code require calculations to determine applicable requirements, any fractional/decimal results of the calculations shall be rounded as provided by this Subsection. For example, the provision of RM zoning district which allows a parcel to be developed with 12 dwellings for each gross acre of site area, requires determining the number of acres in the site, and multiplying the site area by 12 to determine the number of dwellings allowed. 1. Minimum lot area and number of lots. The fractional/decimal results of calculations of the number of parcels allowed through subdivision based on a minimum lot area requirement shall be rounded down to the next lowest whole number. For example, the RM zoning district minimum lot area requirement of 5,000 square feet would allow division of a 21,000 lot into four lots (21,000 / 5,000 = 4.2, rounded down to four). 2. Residential density. When the number of housing units allowed on a site are calculated based on density limits established by a zoning district, any fraction of a unit of 0.9 or greater shall be counted as a whole unit; any fraction of a unit less than 0.9 shall be rounded down to the next lowest whole number. For example, the RM zoning district allows 12 dwelling units per gross acre of site area; a site of 8,500 square feet would be allowed two dwelling units (8,500 / 43,560 = 0.195 acres; 0.195 x 12 = 2.34, rounded down to two). A site of 10,600 square feet would be allowed three housing units (10,600 / 43,560 = 0.243 acres; 0.243 x 12 = 2.92, rounded up to three). 3. Floor Area Ratio (FAR). When calculating the allowable floor area of a structure based on the FAR established by the applicable zoning district, the fractional/decimal results of calculations shall be rounded to the next highest whole number when the fraction/decimal is 0.5 or more, and to the next lowest whole number when the fraction is less than 0.5. For example, a maximum Floor Area Ratio of 0.25 applied to a site of 25,856 square feet results in a maximum allowable floor area of 7,757 square feet (25,856 x.025 = 7,756.8, rounded up to 7,757). The maximum FAR itself (0.09, 0.25, etc.) is never rounded. 4. All other calculations. For all calculations required by this Development Code other than those described in Subsections C.1 and C.2 above, the fractional/decimal results of calculations shall be rounded to the next highest whole number when the fraction/ decimal is 0.5 or more, and to the next lowest whole number when the fraction is less than 0.5. D. Conflicting requirements. Any conflicts between different requirements of this Development Code, or between this Development Code and other regulations, shall be resolved as follows. 1. Development Code provisions. In the event of any conflict between the provisions of this Development Code, the most restrictive requirement shall control, except in case of any conflict between the zoning district regulations of Article U (Zoning Districts and Allowable Land Uses) and the provisions of Article III (Site Planning and General Development Standards), the provisions of Article III shall control. Diamond Bar Development Code Article I - Purpose and Applicability Hearing Draft - September 1997 1'12 Establishment of Zoning Districts 22.06.030 - Zoning Map Adopted 22.06 The Council hereby adopts the City of Diamond Bar Zoning Map (hereafter referred to as the "Zoning Map"), which is on file with the Department. A. Inclusion by reference. The Zoning Map, together with all legends, symbols, notations, references, zoning district boundaries, and other information on the maps, has been adopted by the Council in compliance with Government Code Sections 65800 et seq., and is hereby incorporated into this Development Code by reference as though it were fully included here. B. Zoning district boundaries. The boundaries of the zoning districts established by Section 22.06.020 (Zoning Districts Established) shall be shown upon the Zoning Map. C. Relationship to General Plan. The Zoning Map shall implement the General Plan, specifically including the Land Use Map. D. Map amendments. Amendments to the Zoning Map shall follow the process established in Chapter 22.70 (General Plan, Development Code, and Zoning Map Amendments). E. Zoning Map interpretation. The Zoning Map shall be interpreted in compliance with Section 22.03.020.E (Rules of Interpretation - Zoning Map Boundaries). 22.06.040 - Zoning District Regulations A. Purpose. Chapters 22.08 through 22.14 determine which land uses are allowed in each zoning district established by Section 22.03.020 (Zoning Districts Established), what land use entitlement is required to establish each use, and the basic development standards that apply to allowed land uses in each zoning district. B. Determination of allowable land uses and permit requirements. The uses of land allowed by this Development Code in each zoning district are identified in Tables 2-x, 2-x, and 2-x of this Chapter as being: Permitted subject to compliance with all applicable provisions of this Development Code, subject to first obtaining a Zoning Clearance (Chapter 22.46), and any Building Permit or other permit required by the Municipal Code. These are shown as "P" uses in the tables; 2. Allowed subject to the approval of a Minor Conditional Use Permit (Chapter 22.56), and shown as "MUP" uses in the tables; 3. Allowed subject to the approval of a Conditional Use Permit (Chapter 22.58), and shown as "CUP" uses in the tables; Land uses that are not listed in the tables or are not shown in a particular zoning district are not allowed, except as otherwise provided by Section 22.03.020.F (Rules of Diamond Bar Development CodeArticle II -Zoning Districts Hearing Draft - September 1997 II -s Establishment of Zoning Districts 22.06 Interpretation - Allowable Uses of Land), or 22.02.030 (Exemptions from Land Use Permit Requirements). C. Standards for parcels with multiple zoning districts. The following standards apply to the proposed development or-sttbehvisien of parcels that are or may be designated with more than one zoning district. I. Existing parcel in multiple zoning districts. Where an existing parcel is zoned in two or more zoning districts, each portion of the parcel in a separate district shall be developed/used in compliance with the requirements of the applicable district. 2. Parcels proposed for consolidation. Where a Lot Line Adjustment or Tentative Map application proposes the consolidation of two or more parcels, so that a single parcel would be covered by two or more zoning districts, the application for adjustment or map approval shall be accompanied by an application for rezoning the lot into a single zoning district, in compliance with Chapter 22.70 (General Plan, Development Code, and Zoning Map Amendments). D. Conflicts between provisions. Rules for resolving conflicts .between different Development Code provisions may be found in 22.03.020.D (Rules of Interpretation - Conflicting Requirements). Diamond Bar Development Code Article II - Zoning Districts Hearing Draft - October 29, 1997 II -6 CHAPTER 22.08 - RESIDENTIAL ZONING DISTRICTS Sections: 22.08.010 - Purpose of Chapter 22.08.020 - Purposes of Residential Zoning Districts 22.08.030 - Residential Zoning District Land Uses and Permit Requirements 22.08.040 - Residential Zoning; District General Development Standards 22.08.050 - Minimum Lot Area 22.08.010 - Purpose of Chapter This Chapter provides regulations for development and new land uses in the residential zoning districts established by Section 22.06.020 (Zoning Districts Established). 22.08.020 - Purposes of Residential Zoning Districts The purposes of the individual. residential zoning districts and the manner in which they are applied are as follows. A. RR (Rural Residential) District. The RR zoning district identifies hillside areas intended for rural living, including the keeping of animals, with supporting accessory structures. The maximum allowed density for new residential subdivisions within this zoning district will be one dwelling unit per gross acre, or lower densities where required by Chapter 22.22 (Hillside Management). The RR zoning district is consistent with the Rural Residential land use category of the General Plan. B. RL (Low Density Residential) District. The RL zoning district is intended primarily for parcels developed with existing detached single-family dwellings. The maximum allowed density for new residential subdivisions within this zoning district will be three dwellings per gross acre. The RL zoning district is consistent with the Low Density Residential land use category of the General Plan. C. RLM (Low/Medium Density Residential) District. The RLM zoning district is intended primarily for existing subdivided areas developed with detached single- family dwellings. The maximum allowed density for new residential subdivisions within this zoning district will be five dwellings per gross acre. The RLM zoning district is consistent with the Low/ Medium Density Residential land use category of the General Plan. D. RM (Medium Density Residential) District. The RM zoning district is intended for areas developed with existing planned townhome, condominium, apartment, mobile home, and other multi -family residential projects. The maximum allowed density for new residential projects within this zoning district will be 12 dwellings per gross acre. Diamond Bar Development Code Hearing Draft - October 29, 1997 Article II - Zoning Districts II -7 Residential Zoning Districts 22.08 district is consistent with the Medium Density Residential land use category of the General Plan. E. RMH (Medium High Density Residential) District. The RMH zoning district is intended for areas of existing and planned townhome, condominium, apartment, other multi -family residential projects, and mobile home parks. The maximum allowed density for new residential projects within this zoning district will be 16 dwellings per gross acre. The RMH zoning district is consistent with the Medium High Density Residential land use category of the General Plan. F. RH (Residential Multi -Family) District. The RH zoning district is intended for areas of existing and proposed high density condominium and apartment projects, other high density residential projects, and mobile home parks. The maximum allowed density for new residential projects within this zoning district will be 20 dwellings per gross acre. The RH zoning district is consistent with the High Density Residential land use category of the General Plan. 22.08.030 - Residential Zoning District Land Uses and Permit Requirements Table 2-2 identifies the uses of land allowed by this Development Code in each residential zoning district, and the land use permit required to establish eachuse, in compliance with Section 22.06.0403 (Zoning District Regulations). Note: where the last column in the tables ("See Standards in Section") includes a section number, the regulations in the referenced section apply to the use; however, provisions in other sections of this Development Code may also apply. Diamond Bar Development Code Article II - Zoning Districts Hearing Draft - September 1997 II -8 Residential Zoning Districts 22.08 TABLE 2-2 - ALLOWED USES AND PERMIT REQUIREMENTS FOR RESIDENTIAL ZONING DISTRICTS LAND USE (1) PERMIT REQUIREMENT BY ►DISTRICT See standards AGRICULTURAL USES RR RL RLM RM RMH RH in Section: r—Animal keeping P I P 22.42.030 See standards RECREATION, EDUCATION IE PUBLIC ASSFMRT V tTSFs DD Dr DT is Dt � Equestrian facilities CUP -- ----- -�•� P .v.... P LLI DCIII VII: P Cultural facilities, libraries and museums --)z CUP –p– CUP CUP CUP CUP CUP Parks and playgrounds P P P P P P Private residential recreational facilities CUP CUP CUP CUP CUP CUP Religious places of worship CUP CUP CUP CUP CUP CUP Schools - public and private CUP CUP I CUP ICUP P I CUP CUP See standards RESIDENTIAL USES DD Dr DT x. Dll Duplexes – -- ----- -�•� P .v.... P LLI DCIII VII: P Home occupations P P P P P P 22.42.070 Manufactured housing units P P P P P P Mobile home parks CUP CUP CUP CUP CUP CUP Multi -Family dwellings CUP CUP 22.42.040 P P P Residential accessory uses and suctures tr P P P P P P 22.42.110 Residential care homes, 6 or fewer clients P P P P P P Residential care homes, 7 or more clients CUP CUP CUP Secondary residential units P P P P P P 22.42.120 Senior citizen housing P P P P P P single-family dwellings P P P P P P SERVICE USES DD DT See standards Adult day care facilities – – –.._ ..... CUP .. CUP ,... CUP In oecnon: Bed and breakfast inns, 3 rooms maximum CUP CUP CUP Notes: Use not allowed. (See 22.04.020.E regarding uses not listed.) Child day care centers CUP CUP CUP 22.42.040 Child day care, large family day care homes CUP CUP CUP CUP CUP CUP 22.42.040 Child day care, small family day care homes P P P P P P 22.42.040 Public utility or safety facilities P P P P P P KEY TO PERMIT REOUTREMFNTS Symbol Permit Requirement Procedure is in Section on P Permitted use, Zoning Clearance required. (2) 22.46 MUP Conditional use, Minor Conditional Use Permit required. (2) 22.56 CUP Conditional use, Conditional Use Permit required. (2) 22.58 Notes: Use not allowed. (See 22.04.020.E regarding uses not listed.) (1) See Article VI for definitions of each of the land uses listed. (2) See Chapter 22.48 for Development Review requirements for all uses. Diamond Bar Development Code Article II - Zoning Districts Hearing Draft, October 1997 II -9 Residential Zoning Districts 22.08 TABLE 2-2 - ALLOWED USES AND PERMIT REQUIREMENTS FOR RESIDENTIAL ZONING DISTRICTS (Continued) LAND:USE.: PERMIT 1£QUIRE1tIENT S Y UiSTRiCT See standar TRANSPORTATION do COMMUNICATIONS USES RR RL RLM RM RMH RH in Section Transit stations and terminalsCUP CUP CUP CUPI CUP CUP Utility lines P P ! P I P I P I P 22.xx.xxx KEY TO PERMIT REQUIREMENTS Notes: (1) See Article VI for definitions of each of the land uses listed. (2) See Chapter 22= for Development Review requirements for all uses. Diamond Bar Development Code Article II - Zoning Districts Hearing Draft, September 1997 II -10 Pracedureis SymboU Pemtit ent in Section P Permitted use, Zoning Clearance required. (2) 22.xx.xxx MUP Conditional use, Minor Use Permit Use Permit required. (2) 22.xx CUP Conditional use, Conditional Use Permit required. (2) 22.xx Use not allowed. (See 22.03.020.F regarding uses not listed.) Notes: (1) See Article VI for definitions of each of the land uses listed. (2) See Chapter 22= for Development Review requirements for all uses. Diamond Bar Development Code Article II - Zoning Districts Hearing Draft, September 1997 II -10 Residential Zoning Districts 22.08 22.08.040 - Residential Zoning District General Development Standards Subdivisions, new land uses and structures, and alterations to existing land uses and structures, shall be designed, constructed, and/or established in compliance with the requirements in Table 2-3, in addition to the applicable development standards (e.g., landscaping, parking and loading, etc.) in Article III (Site Planning and General Development Standards). RESIDENTIAL DISTRICT GTABLE 2-3 ENERAL DEVELOPMENT STANDARDS Notes: (1) Minimum area for parcels proposed in new subdivisions, except as otherwise provided by 22.08.050 (Minimum Lot Area), and Chapter 22.22 (Hillside Management). Condominium, townhome, or planned development projects may be subdivided with smaller parcel sizes for ownership purposes, with the minimum lot area requirement determined through the subdivision review process, provided that the overall development site complies with the lot area requirements of this Chapter. (2) Maximum number of dwellings allowed for each specified unit of land. The approval of a Minor Use Permit or Conditional Use Permit may result in fewer dwelling units being allowed than the maximum density shown. See also Chapter 22.18 (Affordable Housing Incentives/ Density Bonus Provisions) for possible density bonuses. (3) Maximum allowable height for structures. See Section 22.16.060 (Height Measurement and Height Limit Exceptions). (4) Front setbacks listed are minimums. For single-family detached tract development, a minimum 5 foot setback variation for adjacent residential units is required. Diamond Bar Development Code Hearing Draft - October 29, 1997 Article II - Zoning Districts II -11 Residential Zoning Districts 22.08 TABLE 2-3 RESIDENTIAL DISTRICT GENERAL DEVELOPMENT STANDARDS (Continued) Development Feature Re mentb Zoning District RM RM1I RH Minimum lot area (1) 5,000 s .ft. Residential density (2) 12 dwellings per gross acre 16 dwellings per gross acre 20 dwellings per gross acre Setbacks required Front Sides (each) Street side Rear Minimum setbacks required for structures. See 22.16.090 for setback measurement, allowed prejections into setbacks, and exce tions to setbacks. 20 ft. 15 ft. 20 ft. 5 ft. 5 ft. 5 ft.; plus 1 ft. for each story over 2. 10 ft., reversed corner lot; 5 ft. otherwise 7.5 ft., reversed corner lot; 5 ft. otherwise 7.5 ft., reversed corner lot; 5 ft. otherwise 15 ft. 15 ft. 15 ft. Height limit (3) 35 ft Hillside development As required by Chapter 22.22 (Hillside Management). Landscaping As required by Chapter 22.24 (Landscaping). Parking As required by Chapter 22.30 (Parking and Loadin ). Notes: (1) Minimum area for parcels proposed in new subdivisions, except as otherwise provided by Section 22.08.050 (Minimum Lot Area), and Chapter 22.22 (Hillside Management). Condominium, townhome, or planned development projects may be subdivided with smaller parcel sizes for ownership purposes, with the minimum lot area requirement determined through the subdivision review process, provided that the overall development site complies with the lot area requirements of this Chapter. (2) Maximum number of dwellings allowed for each specified unit of land. The approval of -&-Minor =- '•'--e Per -nit o• Conditional Use Permit within areas subject to Section 22.22.040 (Hillside Management Density) may result in fewer dwelling units being allowed than the maximum density shown. See also Chapter 22.18 (Affordable Housing Incentives/ Density Bonus. Provisions) for possible density bonuses. (3) Maximum allowable height for structures. See Section 22.16.060 (Height Measurement and Height Limit Exceptions). Diamond Bar Development Code Article II - Zoning Districts Hearing Draft - October 29, 1997 II -12 Residential Zoning Districts 22.08.050 - Minimum Lot Area 22.08 The minimum area for each parcel proposed in a subdivision, and the maximum density of residential development, is determined by 22.08.040 (Residential Zoning District General Development Standards). except -where - ---- - -M ti te -T 6rdTrtttrtHe+jweft-feyr Diamond Bar Development Code Hearing Draft - October 29, 1997 Article II - Zoning Districts II -13 Residential Zoning Districts Diamond Bar Development Code Article II - Zoning Districts Hearing Draft - September 1997 11-14 Commercial/Industrial Zoning; Districts 22.10 TABLE 2-4 - ALLOWED USES AND PERMIT REQUIREMENTS FOR OFFICE ZONING DISTRICTS LAND USE (1) PERMIT REQUIREMENT BY DISTRICT MANUFACTURING &PROCESSING OP OB 3 C See standards ( ) O in Section: Electronics, appliance, and equipment manufacturing CUP(4) Handcraft industries CUP(4) Media production P F7 Paper product manufacturing CUP(4) Research and development .2 CUP RECREATION, EDUCATION & Pire►.rr acat:nanr vrrcrc See standards Clubs, lodges, and private meeting halls - P P v in 3ecnon: P Community/cultural centers P P P Cultural facilities, libraries and museums P P P Indoor amusement/entertainment facilities Use not allowed. (See 22.04.020.1' regarding uses not listed.) CUP Health/fitness facilities CUP CUP Outdoor recreation CUP Parks and playgrounds P P P Religious places of worship CUP CUP CUP Schools - Public and private P P P Studios - Art, dance, music, photography, etc. CUP Theaters, auditoriums, meeting halls CUP CUP CUP KEY TO PERMIT REOUIRFMF.NTR Symbol Permit Requirement Procedure isin Section: P Permitted use, Zoning Clearance required. (2) 22.46 MUP Conditional use, Minor Conditional Use Permit required. (2) 22.56 CUP Conditional use, Conditional Use Permit required. (2) 22.58 Use not allowed. (See 22.04.020.1' regarding uses not listed.) Notes: (1) See Article VI for definitions of each of the land uses listed. (2) See Chapter 22.48 for Development Review requirements for all uses. (3) Additional uses allowed within the Gateway Corporate Center in compliance with the Gateway Corporate Center Design Guidelines. (4) Use allowed only when accessory to an office use. Continues on next page Diamond Bar Development Code Article II -Zoning Districts Hearing Draft, October 1997 II -17 Commercial/ Industrial Zoning Districts 22.10 TABLE 24 - ALLOWED USES AND PERMIT REQUIREMENTS FOR OFFICE ZONING DISTRICTS (Continued) LAND USE (1) PERMIT REQUIREMENT BY DISTRICT See standards ccevrrrrtct:S OP OR CO ' in Section: Adult day care facilities _ Automated teller machines (ATMs) P P P Banks and financial services P P P Business support services P P P Car wash, fully automated and accessory to service station only CUP CUP CUP Child day care centers CUP CUP CUP 22.xx Hotels and motels P Medical services - Clinics and labs CUP P P Medical services - Hospitals CUP CUP cup Offices - administrative/business P P P Offices - production P P P Offices - professional P P P Personal services P P P Public safety facilities P P P Public utility facilities • P P P Service stations P P P 22.xx See standards TRANSPORTATION & COMMUNICATIONS USES OP OB CO in Section: Heliports CUP Utility lines P P P 22.xxxxx Telecommunications facilities KEY TO PERMIT REQUIREMENTS Notes: (1) See Article VII for definitions of each of the land uses listed. (2) See Chapter 22-xx for Development Review requirements for all uses. • Within the Gateway Corporate Center, other uses allowed as listed within the Gateway Corporate Center Design Guidelines Diamond Bar Development Code Article II - Zoning Districts Hearing Draft, September 1997 Revised October 14, 1997 11-18 Commercial /Industrial Zoning Districts 22.10 TABLE 2-5 - ALLOWED USES AND PERMIT REQUIREMENTS FOR COMMERCIAL/INDUSTRIAL ZONING DISTRICTS (Continued) LAND USE (1) PERMIT REQUIREMENT BY DISTRICT See standards RECREATION, EDUCATION & PUBLIC ASSEMBLY USES C-1 C-2 C-3 I in Section: Adult entertainment businesses Permit Requirement Procedure is in Section: •GFRs. CUP 22,42.020 Clubs, lodges, and private meeting halls 22.46 CUP CUP Community/ cultural centers CUP Conditional use, Conditional Use Permit required. (2) CUP Cultural facilities, libraries and museums P P P Health/fitness facilities CUP CUP Indoor amusement/ entertainment facilities CUP CUP Outdoor recreation CUP Religious places of worship CUP CUP CUP Schools - Public and private P P P Schools - Specialized education and training P P P Studios - Art, dance, music, photography, etc. CUP CUP CUP Theaters, auditoriums, meeting halls I CUP CUP KEY TO PERMIT REQUIREMENTS Symbol Permit Requirement Procedure is in Section: P Permitted use, Zoning Clearance required. (2) 22.46 MUP Conditional use, Minor Use Permit required. (2) 22,56 CUP Conditional use, Conditional Use Permit required. (2) 22.58 Use not allowed. (See 22.04.020.17 regarding uses not listed.) Notes: (1) See Article VI for definitions of each of the land uses listed. (2) See Chapter 22.48 for Development F;eview requirements for all uses. Continues on next page. Diamond Bar Development Code Article II - Zoning Districts Hearing Draft, October 1997 II -21 Commercial /Industrial Zoning Districts 22.10 TABLE 2-5 - ALLOWED USES AND PERMIT REQUIREMENTS FOR COMMERCIAL/INDUSTRIAL ZONING DISTRICTS (Continued) ,LAND USE (I) PERMIT REQUIREMENT BYDISTRICT See standards SERVICE USES C-1 C-2 C-3 I in Section: Ambulance services Re uirement by Zonin District Development Feature Automated teller machines (ATMs) P P P Banks and financial services P P P Bed and breakfast inns P CUP Business support services P P P Commercial/Industrial Zoning Districts TABLE 2-6 COMMERCIAL/INDUSTRIAL DISTRICT GENERAL DEVELOPMENT STANDARDS 22.10 Commercial/Industrial Zoning Districts TABLE 2-6 COMMERCIAL/INDUSTRIAL DISTRICT GENERAL DEVELOPMENT STANDARDS (Continued) 22.10 Development Feature Re uirement by Zonin District Development Feature OP Og c0 Minimum lot area (1) 6,000 s .ft. Setbacks required Minimum setbacks required for structures. See 22.16.090 for setback measurement, allowed projections into setbacks, and exceptions to setbacks. See Chapter 22.30 for reqaired parking setbacks. Front 20 ft.; or equal to the front setback required for a residential zone 30 ft.; plus 10 ft. for each additional story over 3. 10 ft. abutting the site. Sides (each) 10 ft. where site abuts a residential district; none otherwise. 20 ft. 10 ft. where site abuts a residential district, none otherwise. 20 ft., or equal to the street side setback required for a residential zone ahnlfino 4— .4. 30 ft.; plus 10 ft. for each additional story over 3. 20 ft. where site frontage abuts a residential zone; none otherwise. Street side Commercial/Industrial Zoning Districts TABLE 2-6 COMMERCIAL/INDUSTRIAL DISTRICT GENERAL DEVELOPMENT STANDARDS (Continued) 22.10 Development Feature Re irementb Zonin District 03 Minimum lot area (1) 10,000 s .ft. 20,000 sq.ft Special Purpose Zoning Districts 22.12 TABLE 2-7 - ALLOWED USES AND PERMIT REQUIREMENTS FOR SPECIAL PURPOSE ZONING DISTRICTS LAND USE (1) PERMIT REQUIREMENT BY DISTRICT See standards AGRICULTURAL USES AG OS REC in Section: rCrop production and grazing p See standards RECREATION. EDUCATION. PUBLIC ASSVMRI.Y ITSFS Ar_ nc DUO, Cultural facilities, libraries and museums P P - -• _______.. Equestrian facilities CUP P Outdoor recreation CUP P Parks, playgrounds and public recreation facilities CUP P Recreational vehicle park Use not allowed. (See 22.04.020.17 regarding uses not listed.) P Religious places of worship CUP CUP Schools - Colleges and universities P P Schools - Public and private P P See standards RESIDENTIAL USES AG OS RFC i., Home occupations P P 22.42.070 Residential accessory uses and structures P P 22.42.110 Single-family dwellings p p See standards SERVICE USES AG OS REC in Section: Public utility or safety facilities P P See standards TRANSPORTATION & COMMUNICATIONS USES AG OS RFC :r Utility lines P --P Telecommunications facilities -4- 22.42.130 KEY TO PERMIT RFOUiRFMFNTs Symbol Permit Requirement Procedure is in Section: P Permitted use, Zoning Clearance required. (2) 22.46 MUP Conditional use, Minor Use Permit Use Permit required. (2) 2256 CUP Conditional use, Conditional Use Permit required. (2) 22.58 Use not allowed. (See 22.04.020.17 regarding uses not listed.) Notes: (1) See Article VI for definitions of each of the land uses listed. (2) See Chapter 22.48 for Development Review requirements for all uses. Diamond Bar Development Code Article II - Zoning Districts Hearing Draft, October 1997 II -31 Special Purpose Zoning Districts 22.12 22.12.040 - Special Purpose District General Development Standards A. General development standards. Subdivisions, new land uses and structures, and alterations to existing land uses and structures, shall be designed, constructed, and/or established in compliance with the requirements in Table 2-8, in addition to any other applicable requirements of this Chapter, and the development standards (e.g., landscaping, parking and loading, etc.) in Article III (Site Planning and General Development Standards). B. SP (Specific Plan) district development standards. Standards for development and new land uses within the SP (Specific Plan) zoning district shall be determined by the applicable Specific Plan. Diamond Bar Development Code Article II - Zoning Districts Hearing Draft - September 1997 U-32 Special Purpose Zoning Districts 22.12 SPECIAL PURPOSE DISTRICT TABLE 2-8 GENERAL DEVELOPMENT STANDARDS Re uirement b Zonin�Di5lr.ct Development Feature :O:S— AG REC Minimum lot area (1) None required 5 acres Determined through review of park or recreational use. Residential density (2) Setbacks required Front Sides (each) Street side Rear ;ht limit (3) 1 single-family unit per existing parcel, and one secondary residential unit per 22.42.120 except where construction was previously restricted or prohibited by the County of Los Aneeles 1 single-family unit per None allowed 5 acres and one secondary residential unit per 22.42.120 except where construction was previously restricted or prohibited by the County of Los Angeles Determined by Development Review process. 35 ft. As required by Chapter 22.24 As required by Chapter 22.30 (Parking and As required by Chapter 22.36 Notes: (1) Minimum area for parcels proposed in new subdivisions, except as otherwise provided by Section 22.08.050 (Minimum Lot Area), and Chapter 22.22 (Hillside Management). For Open Space/Conservation district, no minimum lot area required, unless construction was previously restricted or prohibited on such properties by the County of Los Angeles. (2) Maximum number of dwellings allowed for each specified unit of land. The approval of a Minor Use Permit or Conditional Use Permit may result in fewer dwelling units being allowed than the maximum density shown. See also Chapter 22.18 (Affordable Housing Incentives/Density Bonus Provisions) for possible density bonuses. (3) Maximum allowable height for structures. See Section 22.16.060 (Height Measurement and Height Limit Exceptions). Diamond Bar Development Code Article II -Zoning Districts Hearing Draft - October 29, 1997 11-33 Special Purpose Zoning Districts 22.12 Diamond Bar Development Code Article II - Zoning Districts Hearing Draft - September 1997 II -34 CHAPTER 22.16 - GENERAL PROPERTY DEVELOPMENT AND USE STANDARDS Sections: 22.16.010 - Purpose and Applicability 22.16.020 - Access 22.16.030 - Air Emissions 7? .16.040 - Environmental Resources Protection 22.16.050 - Exterior Lighting 22.16.060 - Height Measurement and Height Limit Exceptions 22.16.070 - Open Space for Commercial Projects 22.16.080 - Screening and Buffering 22.16.090 - Setback Regulations and Exceptions 22.16.100 - Solid Waste/Recyclable Materials Storage 22.16.110 - Undergrounding of Utilities 22.16.120 - Vibrations 22.16.130 - View Protection 22.16.010 - Purpose and Applicability A. Purpose. The purpose of this Chapter is to ensure that new or modified uses and development produce an environment of stable and desirable character which is harmonious with existing and future development, and protects the use and enjoyment of neighboring properties, consistent with the General Plan. B. Applicability. The standards of this Chapter apply to mere gian all zoning districts (e.g., residential, commercial, manufacturing, etc.), and therefore, are combined in this Chapter. These standards shall be considered in combination with the standards for each zoning district in Article H (Zoning Districts and Allowable Land Uses). Where there may be a conflict, the standards specific to the zoning district shall override these general standards. All new or modified structures and uses shall conform with the standards of this Chapter as determined applicable by the Director, except as specified in 22.68 (Nonconforming Uses, Structures and Parcels). 22.16.020 - Access Every structure shall be constructed upon ewe a legally recorded parcel with a permanent means of access to a public street or road or a private street or road, conforming to adopted City standards. All structures shall be located to provide safe and convenient access for servicing, fire protection and required off-street parking. Any parcel located on a private street or road which was legally established prior to the effective date of this Development Code, is exempt from the required compliance with the latest adopted City standards for private streets or roads. Diamond Bar Development Co to Article III - Site Planning Hearing Draft - September 1997 III -5 General Property Development and Use Standards 22.16 Access driveways shall be provided as required in compliance with 22.30 (Off -Street Parking and Loading Standards) MAd shallnet bellottge. thaft ftecessety.* 22.16.030 - Air Emissions A. Dust and dirt emissions. Land use activities that may create dust emissions (e.g., construction, grading, etc.) shall be conducted to create as little dust or dirt emission beyond the boundary line of the parcel as possible including, but not limited to, the following: I. Scheduling. Grading activities shall be scheduled to ensure that repeated grading will not be required, and that implementation of the proposed land use will occur as soon as possible after grading; 2. Operations during high winds. Clearing, earth -moving, excavation operations, or grading activities shall cease in high wind conditions when dust blows and control methods are no longer effective; 3. Area of disturbance. The area disturbed by clearing, demolition, earth -moving, excavation operations, or grading shall be the minimum required to implement the allowed use; 4. Dust control. During clearing, demolition, earth -moving, excavation operations, or grading, dust emissions shall be controlled by regular watering, paving of construction roads or other dust -preventive measures (e.g., hydroseeding, etc.), subject to the approval of the Building Official and City Engineer; a. Material(s) excavated or graded shall be sufficiently watered or covered to prevent excessive amounts of dust. Watering, with complete coverage of the disturbed area, shall occur at least twice daily preferably in the late morning and after work is done for the day. Reclaimed water shall be used when available. b. Material(s) transported off-site shall not be loaded higher than six inches below the top of the trailer and either sufficiently watered with reclaimed water when available, or securely covered to prevent dust. 5. On-site roads. On-site roads shall be paved as soon as feasible, watered periodically with reclaimed water, whenever possible, or stabilized in an environmentally safe manner; 6. Revegetation. Graded areas shall be revegetated as soon as possible in compliance with the approved landscape plan and any conditions of approval; and 7. Fencing. Appropriate fences or other means may be required by the Director to contain dust and dirt within the parcel. B. Odor emissions. Land use activities that may produce odors or noxious matter (e.g., fumes, gases, vapors, etc.) shall comply with SCAQMD's Rules and Regulations, including Rule 402 which prohibits the formation of an odor nuisance. Diamond Bar Development Code Article III -Site Planning Hearing Draft -October 29, 1997 111 -6 CHAPTER 22.22 - HILLSIDE MANAGEMENT Sections: 22.22.010 - Purpose 22.22.020 - Applicability 22.22.030 - Required Plans and Reports 22.22.040 - Density 22.22.050 - Hillside Development Standards and Guidelines 22.22.060 - Landform Grading and Revegetation Standards 22.22.070 - Slope Analysis 22.22.080 - Grading 22.22.090 - Drainage 22.22.100 - Access, Trails, and Roadways 22.22.110 - Site Design 22.22.120 - Architecture 22.22.130 - Fences and Landscaping 22.22.140 - Fire Protection Standards 22.22.150 - Evaluation of Development Review Application 22.22.010 - Purpose This Chapter establishes regulations for development within hillside areas to: A. Preserve and protect the views to and from hillside areas in order to maintain the identity, image and environmental quality of the City of Diamond Bar; B. Maintain an environmental equilibrium consistent with the native vegetation, animal life, geology, slopes, and drainage patterns; C. Facilitate hillside preservation through appropriate development standards and guidelines of hillside areas. The guidelines are " intended to provide direction and encourage development which is sensitive to the unique characteristics common to hillside properties, which include, bttt affe not kwAted te slopes, land form, vegetation and scenic quality. Innovation in design is encouraged as long as the end result is one which respects the hillside and is consistent with the purposes expressed in this section and in the goals and objectives of the General Plan; D. Ensure that development in the hillside areas shall be concentrated in those areas with the least environmental impart and shall be designed to fit the existing land form; E. Preserve, where possible, significant features of the natural topography, including swales, canyons, streams, knolls, ridgelines, and rock outcrops. Development may necessarily affect natural features by, for example, roads crossing ridgelines. Therefore, a major design criterion shall be the min�ation of such impacts; F. Provide a safe means of ingress and egress for vehicular and pedestrian traffic to and within hillside areas, with minimum disturbance to the undeveloped terrain; Di Development Code Article III -Site Planning nin Hearing Draft - September 1997 111-31ng Hillside Management 22.22 G. Correlate intensity of development with the steepness of terrain in order to minimize the impact of grading, unnecessary removal of vegetation, land instability, and fire hazards; H. Provide in hillsides, alternative approaches to conventional flat land development practices by achieving land use patterns and intensities that are consistent with the natural characteristics of hill areas such as slopes, land form, vegetation and scenic quality; and I. Encourage the planning, design and development of sites that provide maximum safety with respect to fire hazards, exposure to geological and geotechnic hazards, drainage, erosion and siltation, and materials of construction; provide the best use of natural terrain; and to prohibit development that will create or increase fire, flood, slide, or other safety hazards to public health, welfare, and safety. It is the intent of this Chapter to establish regulations and guidelines to ensure that development will complement the character and topography of hillside areas. Specifically, the City desires the application of good hillside planning techniques and the use of landform grading and revegetation in the implementation of hillside projects. 22.22.020 - Applicability A. Hillside area. The standards contained in this Chapter apply to all uses and structures within areas having a slope of 10 percent or greater. B. Basis for slope determinations. For the purpose of this Chapter, slope shall be computed on the natural slope of the land before grading is commenced, as determined from a topographic map having a scale of not less than one inch equals 100 feet and a contour interval of not more than five feet. E. Bevelopmenhevietv tecittired. Hillside de�-eioptytents shall be subject to Development C. Conditional Use Permits. Hillside developments shall be subject to the approval of a Conditional Use Permit in compliance with Chapter 22.58. D. Exemption. A lot of record as of the date of adoption of these regulations shall be entitled to one dwelling unit. Development upon such lots shall be subject to the guidelines and standards of this Chapter and processed pursuant to Article IV, Chapter 22.48 (Development Review). 22.22.030 - Required Plans and Reports A subdivision or land use entitlement application for a site within a hillside area shall include the following documents, reports, and maps as determined appropriate by the Director and City Engineer. Exceptions to the filing requirements shall require a written justification supported by factual information submitted to the Director and City Engineer for consideration. Diamond Bar Development Code Article III - Site Planning Hearing Draft -October 29,1997 III -32 Hillside Management 22.22 A. Natural features map. A natural features map, which shall identify all existing slope banks, ridgelines, canyons, natural drainage courses, federally recognized blue line streams, rock outcroppings, and existing vegetation. Also depicted shall be landslides and other existing geologic hazards. Diamond Bar Development Code g III -n Article III -Site Planning Hearing Draft -October 29, 1997 Hillside Management Conventional r Landform - Plan View Landform - Obli'que View l r x.22 Diamond Bar Development Code Article III -Site Planning Hearing Draft - September 1997 III -43 Hillside Management 22.22 4. Use of variable slope ratios. The use of landform grading designs, creates valleys and concave indentations on building pad areas which can result in a net loss of buildable area. Two methods shall be allowed to offset this loss: a. Pad areas lost due to concave indentations will be counted towards meeting the open space or landscape area requirements for the development. b. Segments of a cut or fill slope will be allowed to be designed with variable slope ratios less than 2:1, but not less than 1.5:1 within the following guidelines: 1) A geotechnical engineer shall certify that slopes so designed will meet standard stability requirements; 2) Overall ratio from toe to toe will be 2:1 or greater; and 3) Ratios greater than 2:1 will also be used in the slope design. B. Grading standards. 1. Finished slopes shall not be created greater than 50 percent (2:1) except adjacent to a structure where the maximum created slope is limited to 67 percent (1.5:1) or less. 2. Grading shall be phased so that prompt revegetation or construction will control erosion. Where possible, only those areas that will be built on, resurfaced, or land- scaped shall be disturbed. Top soil shall be stockpiled during rough grading and used on cut and fill slopes whenever feasible. Revegetation of cut and fill slopes shall occur within three months of grading completion. 3. Grading operations shall be planned to avoid the rainy season, October 15, to April 15. Grading permits may be issued any time of year when a plan for erosion control and silt retention has been approved by the City Engineer. 4. Excavation or other earth disturbance shall not be allowed on a hillside area prior to the issuance of a grading permit with the exception of drill holes and exploratory trenches for the collection of geologic and soil data. Exploratory trenches and excess roads should be properly backfilled and erosion treatment and revegetation provided. 5. No point on any structure subject to the provisions of this Chapter shall be closer to a prominent ridge than 108 feet nwetstited horizenketRy art a topopetphic50 feet measured vertically on a cross section, whichever is more restrictive. And in no case, shall the roof line or any other portion of a structure extend above the line of sight between a ridge line and any public right-of-way, whether the ridgeline is above or below the right-of-way. Diamond Bar Development Code Article III - Site Planning Hearing Draft -October 29, 1997 111-44 Hillside Management 50' IL 22.22 6. Lot pad grading is limited to the boundaries of the structure's foundation, vehicle parking space and a front, rear, and side yard areas as shown onthe approved grading plan, and in compliance with the setback requirements of'Article II (Zoning Districts and Allowable Land Uses). For all lots subject to this Chapter, building setbacks shall be measured from the edge of the building pad. (Graphic to be provided) 7. Retaining walls associated with lot pads are -}rmiteel ated by ft TTtft'dLTttt11 C)" Diamond Bar Development Code Hearing Draft -October 29, 1997 Article III - Site Planning III -45 Hillside Management 22.22 shall not to exceed four feet in height. Where an additional retained portion is necessary due to unusual or extreme conditions, (e.g., lot configuration, steep slope, or road design) the use of terraced retaining structures shall be considered on an individual lot basis. Terraced walls shall be separated by a minimum of fear three feet with appropriate landscaping. Tenneing Terraced retaining walls shall not be used as a typical solution within a development and shall be limited to the minimum requited subject to approval of the Director. 8. Lot lines shall be placed two feet beyond top of major slope areas within public view corridors to help ensure their maintenance by the downhill owner. Diamond Bar Development Code Article III - Site Planning Hearing Draft -October 29, 1997 III -45a Hillside Management C. Grading guidelines. 22.22 1. Where possible, graded areas should be designed with manufactured slopes located on the uphill side of structures, thereby, hiding the slope behind the structure. This Not This uu p r= p .. Roadway _ Roadway slopes should be rounded to pi ovfda a mon Mud appearance. t+" manufactured slopes should be located an the uptti aide of the structure to reduce the appearance of grading from the roadway. Retdnhtg wags may be used. 2. Terraced retaining structures up to four feet in height may be utilized when separated by a minimum of 3 feet and appropriate landscaping. This Not This Terraced retaining walls break up mass Single retaining wall makes a massive and are easier to screen. scar on hillside and is difficult to screen. 3. On lots sloping with the street, and other configurations not discussed above, one retaining wall, not to exceed 42 inches feet in height may be used in a side yard where necessary. Diamond Bar Development Code Article III - Site Planning Hearing Draft - Septemi er 1997 III -46 CHAPTER 22.24 - LANDSCAPING STANDARDS Sections: 2.2.24.010 - Purpose 22.24.020 - Applicability 22.24.030 - Landscape Plan Requirements 22.24.040 - Landscape Area Requirements 22.24.050 - Landscape Standards 22.24.060 - Waiver or Modification of Requirements 22.24.010 - Purpose The purpose of this Chapter is to achieve the following: A. Enhance the aesthetic appearance of development throughout the City by providing standards related to the quality, and functional aspects of landscaping, B. Increase compatibility between abutting land uses and public rights-of-way by providing landscape screening and buffers; C. Provide for the conservation of water resources through the efficient use of irrigation, appropriate plant materials, and regular maintenance of landscaped areas; and D. Protect public health, safety, and welfare by preserving and enhancing the positive visual experience of the built environment, providing appropriate transition between different land uses, preserving neighborhood character, and enhancing pedestrian and vehicular traffic and safety. 22.24.020 - Applicability A. All projects that require approval of either an administrative land use permit or a discretionary land use permit, provide and maintain landscaping in compliance with the provisions of this Chapter. Standards for the provision of landscaping within the public right-of-way in conjunction with a development project are located in Title 21, Chapter 21.30. (Subdivision Design and Improvement Standards). B. Landscape plans, and plans for the ornamental use of water, including but not limited to lakes, ponds and fountains, shall be submitted to the Department for review for compliance with the requirements of this Chapter. Landscaping shall not be installed until the applicant receives approval of the final landscape plan. Changes to the approved landscape plans that affect the character or quantity of the plant material or irrigation system design are required to be resubmitted for approval prior to installation. Diamond Bar Development Code Hearing Draft -October 29, 1997 Article III - Site Planning III -65 Landscaping Standards 22.24.030 - Landscape Plan Requirements 22.24 A. Preliminary Landscape Plan. A Preliminary Landscape Plan shall be submitted as part of an application for a land use entitlement, for new development, and the significant expansion or redevelopment of an existing use as determined by the Director. B. Final Landscape Plan. Following approval of the land use entitlement, a Final Landscape Plan shall be submitted as part of the application for a Building Permit. Final plans shall be approved by the Director prior to the start of on-site construction or soil disturbance and prior to the issuance of a Building Permit. Projects requiring Commission approval due to their size or use shall require plans be prepared by a licensed landscape architect or licensed contractor. Evidence shall also be provided that a licensed landscape contractor will be responsible for plant and irrigation installation. C. Content. Preliminary Landscape Plans and Final Landscape Plans shall contain information as specified in the instructions for preparing landscape plans, provided by the Department. D. Review and approval. After initial application, the Director shall review each Preliminary Landscape Plan and Final Landscape Plan to verify its compliance with the provisions of this Chapter. E. Statement of surety. When required by the Director, a statement of surety in the form of cash, performance bond, letter of credit, or certificate of deposit, in an amount equal to 120 percent of the total value of all plant materials, irrigation, installation, and maintenance shall be posted with the City for a two-year period. The Director may require statements of surety for phased development projects, a legitimate delay in landscape installation due to seasonal requirements (including adverse weather conditions) and similar circumstances where it may not be advisable or desirable to install all of a project's landscaping before occupancy of the site. Statements of surety may also be required by the Director in conjunction with the approval of a Tree Removal Permit in compliance with 22.38.050 (Tree Removal Permit and Tree Pruning Permit). 22.24.040 - Landscape Area Requirements Landscaping shall be provided in the locations and amounts specified in this Chapter. A. General requirements. Landscaping shall be provided as follows: 1. Setbacks. All setback and open space areas required by this Development Code shall be landscaped, except where a required setback is occupied by a sidewalk or driveway or where a required setback is screened from public view and it is determined by the Director that landscaping is not necessary to fulfill the purposes of this Chapter. 2. Unused areas. All areas of a project site not intended for a specific use,4aek*4Rg-pad shall be landscaped unless it is determined by the Director that landscaping is not necessary to fulfill the purposes of this Chapter. Vacant pad sites within a shopping center that are to Diamond Bar Development Code Article III - Site Planning Hearing Draft - September 1997 111-66 CHAPTER 22.38 - TREE PRESERVATION AND PROTECTION Sections: 22.38.010 - Purpose 22.38.020 - Applicability 22.38.030 - Protected Trees 22.38.040 - Damaging Protected Trees Prohibited 22.38.050 - Tree Removal Permit or Tree Pruning Permit Required 22.38.060 - Exemptions 22.38.070 - Tree Removal in Conjunction with a Discretionary Permit 22.38.080 - Application Submittal Requirements 22.38.090 - Action on Application 22.38.100 - Conditions of Approval 22.38.110 - Findings for Approval 22.38.120 - Tagging 22.38.130 - Tree Replacement/Relocation Standards 22.38.140 - Tree Protection Requirements 22.38.150 - Post Decision Procedures 22.38.160 - Tree Replacement :Fund 12.38.170 - Buyers Awareness Package 22.38.010 - Purpose One of Diamond Bar's most important resources is the beauty of its natural environment. Native trees are a significant part of this environment. While impacted by development over the years, several areas in the City still contain native oak, walnut, and riparian woodlands which support species of trees important to our natural heritage. Trees are an important natural resource, contributing to the environment by replenishing oxygen and counteracting air pollution, controlling soil erosion, and providing wildlife habitat. Trees are an aesthetic asset which provide scale, color, aroma, shade, visual buffers between land uses, and increased property value. It is essential to the public peace, health, and welfare that such trees be protected from random removal or cutting, especially where such trees are associated with a proposal for development. The General Plan, as the overall policy document for the City, requires the preservation and maintenance of native trees including oak, walnut, sycamore, willow, naturalized California Pepper and significant trees of cultural or historical value. The purpose of this Chapter is to protect and preserve these trees and when removal is allowed as a result of new development to require their replacement. 22.38.020 - Applicability The provisions of this Chapter shall apply in all zoning districts to the removal, relocation or pruning of protected trees as provided in 22.38.030 (Protected Trees). Exceptions to the provisions of this Chapter are outlined in 22.38.060 (Exemptions). Diamond Bar Development Code Article III - Site Planning Administrative Draft - September 1997 III -147 Tree Preservation and Protection 22.38 22.38.030 - Protected Trees A. A protected tree is any of the following: B. Native oak, walnut, sycamore, willow, and naturalized California Pepper trees with a DBH of eight inches or greater; C. Trees of significant historical or value as designated by the Council; D. Any tree required to be preserved or relocated as a condition of approval for a discretionary permit; E. Any tree required to be planted as a condition of approval for a discretionary permit; and F. A stand of trees, the nature of which makes each tree dependent upon the others for survival. 22.38.040 - Damaging Protected Trees Prohibited Except as provided in 22.38.060 (Exemptions), no person shall cut, prune, remove, relocate, or otherwise destroy a protected tree. The topping of protected trees is prohibited. No reduction of the tree crown shall be permitted without a Tree Pruning Permit and then only by "thinning out" selected branches in compliance with guidelines published by the National Arborists Association. 22.38.050 - Tree Removal Permit or Tree Pruning Permit Required No person shall remove or relocate a protected tree or develop within the protection zone of a protected tree without first obtaining a Tree Removal Permit from the Director. No person shall prune a protected tree without first obtaining a Tree Pruning Permit from the Director if branches are to be pruned that are over four inches in diameter at the point of the cut. The maximum amount allowed for the pruning of a protected tree shall be 20 percent, except for Oak trees which shall be 10 percent. 22.38.060 - Exemptions The following shall be exempt from the provisions of the Chapter: A. 4. adeptlai OF this chapter, but nat i elludi -9 des ated trees aF 2 "etc le a. eultural ,. A. Trees, except those designated by the City Council as historical or cultural trees and trees covered by a mitigation program and/or conditions of approval located on all developed properties prior to the adoption of this Development Code. Diamond Bar Development Code Article III - Site Planning Administrative Draft - October 29, 1997 111-148 Tree Preservation and Protection 22.38 B. Trees held for sale by licensed nurseries or tree farms or the removal or transplanting of trees for the purpose of operating a nursery or tree farm; Diamond Bar Development Code Administrative Draft - October 29, 1997 Article [II -Site Planning III -148a Definitions Le Cutting or pruning. The detaching or separating from a protected tree any trunk, limb, branch, or root. D. Definitions, "D." The following definitions are in alphabetical order. Damage. Any action causing or contributing injury to the root system or other parts of a tree, by fire, application of toxic substances, operation of machinery or equipment; improper watering; changing natural grade of land by excavation or filling the drip line area around the trunk; or by attaching signs or artificial material thereby piercing the bark of the tree. DBH (diameter at breast height). The diameter of a tree trunk measured in inches at a height of 4.5 feet at the highest average point of the natural grade or existing grade adjacent to the trunk. If a tree splits into multiple trunks below 4.5 feet, the trunk is measured at its most narrow point beneath the split. Deadwood. Limbs, branches or a portion of a tree that contains no leaves during a period of the year when leaves should be present. Decibel. A unit for measuring the amplitude of a sound, equal to 20 times the logarithm to the base of ten of the ratio of the pressure of the sound measured to the reference pressure, which is 20 micropascals. Density. The number of housing units per net acre, unless otherwise stated, for residential uses. Density Bonus. An increase in the number of dwelling units normally allowed on a parcel by the applicable zoning district, granted by the City in compliance with 22.18 (Affordable Housing Incentives/ Density Bonus Provisions). Department. The Diamond Bar Community and Development Services Department, referred to in this Development Code as "Department." Detached. Any structure that does not have a wall or roof in common with another structure. Development. Any construction activity or alteration of the landscape, its terrain contour or vegetation, including the erection or alteration of structures. New development is any construction, or alteration of an existing structure or land use, or establishment of a land use, after the effective date of this Development Code. Development Code. The Diamond Bar Development Code, Title 22 of the Diamond Bar Municipal Code, referred to herein as "this Development Code." Development Agreement. A contract between the City and an applicant for a development project, in compliance with 22.62 (Development Agreements) of this Development Code and Government Code Sections 65864 et seq. A development Diamond Bar Development Code Article VI - Development Code Definitions Hearing Draft - October 29,1997 VI -11 Definitions FBI approval, regardless of any changes to City policies, rules, and regulations after project approval. In return, the City may be assured that the applicant will provide infrastructure and/or pay fees required by a new project. Diameter at breast height. See "DBH." Director. Where the term "Director" is used in this Development Code, the title shall mean the Deputy City Manager responsible for Community and Development Services. Diseased trees. Trees afflicted by but not limited to any of the following: insect infestation, heart rot, exfoliation, slime flux, crown rot, leaf scorch, and root fungus which must be evaluated, treated and re-evaluated in an effort to restore or save the tree. Drip line. A line which may be drawn on the ground around a tree directly under its outermost branch tips and which identifies that location where rainwater tends to drip from the trees. When depicted on a map, the dripline will appear as an irregular shaped circle that follows the contour of the tree's branches as seen from overhead. Drive-in and Drive-thru Sales. Facilities where food or other products may be purchased by motorists without leaving their vehicles. These facilities include fast-food restaurants, drive-through coffee, dairy product, photo stores, etc. Drive-in and Drive-thru Services. Facilities where services may be obtained by motorists without leaving their vehicles. These facilities include drive -up bank teller windows, dry cleaners, etc. Does not include: automatic teller machines (ATMs) or automobile service stations, or car washes, which are separately defined. Duplexes. Residential structures under single ownership containing two dwellings. Dwelling unit. Any structure designed or used for the shelter or housing of one or more persons. Diamond Bar Development Code Article VI - Development Code Definitions Hearing Draft - September 1997 VI -12 Definitions S Sign. Any structure, device, figure, painting, display, message placard, or other contrivance, or any part thereof, situated outdoors or indoors, which is designed, constructed, intended, or used to advertise, or to provide data or information in the nature of advertising, to direct or attract attention to an object, person, institution, business, service, event, or location by any means, including words, letters, figures, designs, symbols, fixtures, colors, illumination, or projected images. The following terms related to signs are used in this Development Code. 1. Abandoned sign. Any sign which no longer advertises a business, lessor, owner, product, service or activity on the premises where the sign is displayed. 2. Alteration. Any change of copy, sign face, color, size, shape, illumination, position, location, construction, or supporting structure of any sign. 3. Animated or moving sign. Any sign which uses movement, lighting, or special materials to depict action or create a special effect to imitate movement. 4. Area of a sign. See "Sign Area." I Awning sign. Any sign copy or logo attached to or painted on an awning. 6. Banner, flag, or pennant. Any cloth, bunting, plastic, paper, or similar non -rigid material used for advertising purposes attached to any structure, staff, pole, line, framing, or vehicle, not including official flags of the United States, the State of California, and other states of the nation, counties, municipalities, official flags of foreign nations and nationally or internationally recognized organizations. 7. Bench sign. Copy painted on any portion of a bench. 8. Business identification sign. A sign which serves to identify only the name, address, and lawful use of the premises upon which it is located and provides no other advertisements or product identification. 9. Cabinet sign (can sign). A sign which contains all the text and/or logo symbols within a single enclosed cabinet and may or may not be illuminated. 10. Changeable copy sign. A sign designed to allow the changing of copy through manual, mechanical, or electrical means including time and temperature. 11. Channel letters. Three dimensional individually cut letters or figures, illuminated or unilluminated, affixed to a structure. 12. Civic event sign. A temporary on-site sign, other than a commercial sign, posted to advertise a civic event sponsored by a public agency, private school, church, civic -fraternal organization, or similar noncommercial organization. 13. Contractor or construction sign. A sign which states the name of the developer and contractor(s) working on the site and any related engineering, architectural or financial firms involved with the project. Diamond Bar Development Code Article VI - Development Code Definitions Hearing Draft - September 1997 VI -43 Definitions l* Significant Ecological Area (SEA). Areas designated by the County of Los Angeles as containing significant biological resources. A portion of the City and the majority of its sphere of influence are within the Tonner Canyon/Chino Hills SEA 15, which contains a significant regional riparian woodland complex, supporting a variety of habitats containing representative plant and animal groups. Sign. Any structure, device, figure, painting, display, message placard, or other contrivance, or any part thereof, situated outdoors or indoors, which is designed, constructed, intended, or used to advertise, or to provide data or information in the nature of advertising, to direct or attract attention to an object, person, institution, business, service, event, or location by any means, including words, letters, figures, designs, symbols, fixtures, colors, illumination, or projected images. The following terms related to signs are used in this Development Code. 1. Abandoned sign. Any sign which no longer advertises a business, lessor, owner, product, service or activity on the premises where the sign is displayed. 2. Alteration. Any change of copy, sign face, color, size, shape, illumination, position, location, construction, or supporting structure of any sign. 3. Animated or moving sign. Any sign which uses movement, lighting, or special materials to depict action or create a special effect to imitate movement. 4. Area of a sign. See "Sign Area." S. Awning sign. Any sign copy or logo attached to or painted on an awning. 6. Banner, flag, or pennant. Any cloth, bunting, plastic, paper, or similar non -rigid material used for advertising purposes attached to any structure, staff, pole, line, framing, or vehicle, not including official flags of the United States, the State of California, and other states of the nation, counties, municipalities, official flags of foreign nations and nationally or internationally recognized organizations. 7. Bench sign. Copy painted on any portion of a bench. 8. Business identification sign. A sign which serves to identify only the name, address, and lawful use of the premises upon which it is located and provides no other advertisements or product identification. 9. Cabinet sign (can sign). A sign which contains all the text and/or logo symbols within a single enclosed cabinet and may or may not be illuminated. 10. Changeable copy sign. A sign designed to allow the changing of copy through manual, mechanical, or electrical means including time and temperature. 11. Channel Ietters. Three dimensional individually cut letters or figures, illuminated or unilluminated, affixed to a structure. Diamond Bar Development Code Article VI - Development Code Definitions Hearing Draft - October 29, 1997 VI -44 Definitions S 12. Civic event sign. A temporary on-site sign, other than a commercial sign, posted to advertise a civic event sponsored by a public agency, private school, church, civic - fraternal organization, or similar noncommercial organization. Diamond Bar Development Code Article VI - Development Code Definitions Hearing Draft - October 29, 1997 VI -44a i vJJJ l.1 i ( ur bHN JURti CAP 566 Rol - tV) 04 '97 EXHIBIT "A" ORDINANCE NO. AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, ADOPTING CODE AMENDMENT 96-08 BY ADDING TITLE 5, CHAPTER 27 ENTITLED ADULT-ORIENTED BUSINESS, AMENDING TITLE 9, CHAPTER 3, ARTICLE 4, SECTIONS 9-3.415 AND 9-3.417 PERMITTING ADULT-ORIENTED BUSINESS AND ESTABLISHING A CONDITIONAL USE PERMIT FOR THE ON-S1TE CONSUMPTION OF ALCOHOLIC BEVERAGES IN CONJUNCTION WITH AN ADULT-ORIENTED BUSINESS, AND AMENDING TITLE 9, CHAPTER 3, ARTICLE 6, SECTION 9-3.626 ENTITLED ADULT-ORIENTED BUSINESS THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. FINDINGS. a. Whereas, the City Council, in adopting this ordinance amendment, 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); and Los Angeles, California (1977), The City Council finds that these studies are relevant to the problems addressed by the City in enacting this amendment to the Murucipal Code to regulate the adverse secondary side effects of Adult -Oriented Businesses, and more specifically finds that these studies provide convincing evidence that: Adult -Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas. 2. Both the proximity of Adult -Oriented Businesses to sensitive land uses and the concentration of Adult -Oriented Businesses tend to result in the blighting and deterioration of the. areas in which they are located. The proximity and concenaation of Adult -Oriented Businesses adjacent to residential, recreational, religious, educational, and ether Adult -Oriented Businesses can cause other businesses and residence to move elsewhere. 4. There is substantial evidence that an increase in crime tends to accompany, rn 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 d' I 0 ti ATTACHMENT 2 i1 �y ,1053 CIT•+ OF SAN JUAN CAP 5bb PGjL NO!) G14 ' q7 17:34 ORDINANCE NO. -2- September, 1997 establish convincing evidence that Adult -Oriented Businesses which are not regulated as to permissible locations often have a deleterious effect on nearby businesses and residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values. b. Whereas, based upon the above findings, the City Council. finds and determines the 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 the blighting or deterioration of the areas in which they are located or surrounding areas. The need for such special regulation is based upon the recognition that the operational characteristics of Adult -Oriented Businesses, particularly when several of them arc concentrated under certain circumstances or located in direct proximity to sensitive uses such as parks, schools, or churches, have a deleterious effect upon the,adjacent areas. it is the purpose and intent of these special regulations to prevent the adverse secondary side effects of Adult -Oriented Businesses. C. Whereas, the locational requirements established by this ordinance will not unreasonably restrict the establishment or operation of constitutionally protected Adult -Oriented Businesses within the City, and a sufficient number of appropriate locations for Adult -Oriented Businesses are provided_ d. Whereas, in adopting this amendment to the Municipal Code, the City Council has been mindful of legal principles relating to the regulation of Adult -Oriented Businesses and does not intend to suppress or 4&inge upon any expressive activities protected by the First amendment of the United States and California Constitutions, but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of Adult -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 American Mini heaters, 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); FWIPBS. Inc,y. 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: Ton a Press. et al v. Cit; of, Los Angeles 999 F 2d 1524 (1993); several California cases including but not limited to: C:im of National Cijy v Wiener. 3 CalAth 832 (1993); Peonle v. SuRg1jor Court ( utero) 49 Cal.3d 14 (1989); and Cky of V„Wo v. Adult Books SIAL 167 Cal.App.3d 1169 (1985); and other federal cases including r 2keland T =&; v- CjV of Jacksonville (5th Cir. 1992) 973 F.2d 1255, UAW n- Inc - y_ Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchelly. Commission on Adult En Ipd4fl[ (3rd Cit. 1993) 10 F.2d 123, International Eateries v_ Broward Coum (1 Ith Cir. (1991) "1 F.2d 1157, and St2r Satellite v CiIX of Biloid (5th Cit. 1986) 779 F2.d 1074. e. Whereas, the City Council also finds that locational criteria alone does not adequately protect the health, safety, and general welfare of the citizens of the City, and thus certain requirements with respect to the ownership and operation of Adult -Oriented Businesses are in the public interest. Whereas, the City Council finds that in addition to the findings and studies conducted f'144'zU1053 CITY OF SAN JLJAN CAP 566 P03 f.�Qll Gi4 'q^ 7: 74 ORDINANCE NO. -3- September, 1997 in other cities regarding increases in crime rates, decreases in property values and the blighting of area in which such businesses are located, the City Council takes legislative notice of the facts recited in the case of KM. Inc. v. KiUan !Qo n . 793 F.2d 1053 (1956), regarding how live adult entertainment results in secondary effects such as prostitution, drug dealing, and other law enforcement problems. g. Whereas, the City Council finds the Mowing, in part based upon its understanding or the documents and judicial decisions in the public record: Evidence indicates that some.dancers, models sad entertainers, and other persons who publicly perform specified sexual activities or publicly display specified anatomical parts in Aduk-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; Evidence indkates 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; 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. K Whereas, zoning, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of fife in the community and to help assure that &H 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. i. Whereas, 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 the City, protect the 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 and protect against the threat to health from the `%144931053 C? r'� OF SAN Y_444 CAP 566 PO4 No') 04 '97 17:35 ORDINANCE NO. 4- September, 1997 spread of communicable and sexually transmitted diseases. j. las, it is not the intent of the City Council in enacting the provisions of this code amendment to the Municipal Code, or any other provisions thereof, to condone or legitimize the distribution of obscene material, and the City recognizes that state law prohibits the distribution of obscene materials and expects and encourages law enforcement officials to enforce state obscenity statutes against such illegal activities in the City. k. Whereas, in Barnes v. Glen Theater (1991) 501 U.S. 560, the United States Supreme Court found it to be constitutionally permissible to prohibit public nudity, including public nudity in Adult -Oriented Businesses, in part due to the secondary effects associated with such public nudity in Adult -Oriented Businesses which secondary effects include, but are not limited to the increase in prostitution, increase in sexual assaults, increase in sexually transmitted diseases and the increase in criminal activity. M. Whereas, 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 in Adult -Oriented Businesses due to the secondary impacts associated with establishments providing public nudity. n. Whereas, in enacting a public nudity limitation in Adult -Oriented Businesses, the City declares that the limitation is a regulatory licensing provision and wl a criminal offense. The City as a part of this code amendment has not provided a criminal penalty for a violation of the nudity limitation. The limitation is a condition of issuance and maintenance of an Adult -Oriented Business permit issued pursuant to the Municipal Code. o. Whereas, the City Council finds that preventing the exchange of money between performers and patrons reduces the likelihood of drug and sex transactions occurring in Adult - Oriented Businesses. P. Whereas, requiting separations between perfortners and patrons reduces the likelihood that such persons will negotiate narcotics sales and/or transact sexual favors within the Adult - Oriented Business. q. Whereas, 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. imitates transmission of disease. Requirements that all indoor areas be open to view by managgamm at aH times, and that adequate lighting be provided are necessary in order to reduce the opportunity for, and therefore the incidence of illegal conduct within the Adult -Oriented Businesses, and to facilitate the inspection of the interior of the premises thereof, by law enforcement personnel r. Whereas, while the City Council desires to protect the rights conferred by the United -4493105-3i I rY JUAN CAP 566 ROS NOU 04 '97 17: -36 ORDINANCE NO. -5- September, 1997 States Constitution to Adult -Oriented Businesses, it does so in a manner that ensures the continued and orderly development of property within the City a,;d 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. S. Whereas, nothing in this code amendment to the Municipal Code is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City Municipal Code provisions or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter or the exhibition or public display thereof. SECTION 2 AMENDMENT TEXT Based upon the findings set forth in Section 1 preceding, the City Council of the City of San Juan Capistrano hereby amends the San Juan Municipal Code as follows: a. Definitions - For the purposes or the amended language of the Municipal Code of this section, specific terms, words and phrases And their definitions shaff have the meanings as set forth below shall be integrated into Appendix "A" (Definitions) of the San Juan Capistrano Municipal Code: (1) "Adult Arcade" shah mean an establishment where 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°/a) percent or more of the number of which are distinguished or characterized by an emphasis upon the depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. (2) "Adult Bookstore" shall mean any establishment, which as a regular and substantial course of conduct, displays and/or distributes Adult Merchandise, books, periodicals, magazines, photographs, drawings, sculptures, motion pictures, videos, slides, films, or other written, oral or visual representations which are distinguished or characterized by an emphasis on a matter depicting, describing or, relating to Specified Sexual Activities or Specified Anatomical Parts. (See "Adult -Oriented Business" for definition of regular and substantial portion of its business). (3) "Adak Cabaret" shall mean a nightclub, bar, lounge, restaurant or similar establishment or concern which features as a regular and substantial course of conduct, any type of live entertaiamwit, films, motion pictures, videos, slides, or other photographic reproductions, or oral, written, or visual representations which are characterized by an emphasis on matter depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. (4) "Adult HoteVMotel"' shall mean a hotel or motel, which as a regular and substantial CIT,' OF Sk4 Ji -4N CHP 566 P06 rliDf! 0.3 '97 17:36 ORDINANCE NO. -6- September, 1997 course of conduct provides to its patrons, through the provision of rooms equipped with c television or other medium, material which is distinguished or characterized by the emphasis on matter depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts and/or which rents, leases, or lets any room for less than a 12 - hour period and/or rents, leases or lets any room more than once in a 24-hour period and/or which advertises the availability of any of the above. (5) "Adult Motion Picture Theater" shall mean a business establishment where, for any form of consideration, films, computer generated images, motion pictures, video cassettes, slides or similar photographic reproductions are shown, and thirty (3 We) percent or more of the number of which are distinguished or characterized by an emphasis upon the depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. (6) "Adult 1%eater" shall mean a theater, concert hall auditorium, or similar establishment which, for any form of consideration regularly features live performances which are distinguished or characterized by an emphasis on the display of Specified Sexual Activities or Specified Anatomical Parts. (7) "Adult Model Studio" shall mean any premises where there is furnished, provided or procured a figure model or models who pose in any manner which is characterized by its emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts where such model(s) is being observed or viewed by any person for the purpose of being sketched, painted, drawn, sculptured, photographed, filmed, or videotaped for a fee, or any other thing of value, as a consideration, compensation, or gratuity for the right or opportunity to so observe the model or remain on the premises. Adult Model Studio shall not include any Live Art Class or any studio or classroom which is operated by any public agency, or any private educational institution authorized to issue and confer a diploma or degree under Section 94300 S1 M. of the Education Code. (S) " Adult Motion Picture Arcade" shall mean any business establishment or concern containing coin or slug operated or manually or eiectronicaliy controlled still, motion picture or video machines, projectors, or other image producing devices that are maintained to display images to a individual in Individual Viewing Areas when those images are distinguished or characterized by an emphasis on matter depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. (9) "A&K-Oriented Business" shall mean any business establishment or concern which as a regular and substantial course of conduct performs as an Adult Bookstore, Adult Theater. Adult Motion Picture Arcade, Adult Cabaret, Stripper, Adult Model Studio or Adult Hotel/Motel (butt not clothing Optional Hotel/Motel), any business establishment or concern which as a regular and substantial course of conduct sells or distributed Sexually Oriented Merchandise or Sexually Oriented Material; or any other business establishment or concern which as a regular and substantial course of conduct offers to its patrons products, 7144931053 CITY OF SAP! JUAN CAP 566 P07 rJcf .f ORDNANCE NO. -7- September, 1997 merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Pans. "Adult - Oriented Business" does not include those uses or activities, the regulation of which is preempted by state law. "Adult -Oriented Business" shall also include any business establishment or concern which as a regular and substantial course of conduct provides or allows performers, models,, actors, actresses, or employees to appear in any place in attire which does not opaquely cover Specified Anatomical Parts. For the purposes of the Municipal Code, a business establishment or concern has established the provision or products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts as a regular and substantial course of conduct when one or more of the following conditions exist: (i) The area devoted to Adult Merchandise and/or Sexually Oriented Material exceeds more than twenty-five (25%) percent of the total display or floor space area open to the public; (ii) The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on Specified Sexual Activities or Specified Anatomical Parts at least six (6) times in any month of any given year; (iii) The regular and substantial course of conduct of the business consists of or involves the We, trade, display or presentation of services, products, or entertainment which are characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts. (10) "Adult -Oriented Business Applicant" shall mean a person who is required to file an application for a permit in accordance with the applicable provisions of the Municipal Code, including an individual owner, managing partner, officer of a corporation, or any other operator, manager, employee, or agent of an Adult -Oriented Business_ (11) "Adult -Oriented Business Operator" shall mean a person who supervises, manages, inspects, directs, organizes, controls 'or in any other way is responsible for or in charge of the premises of an Adult -Oriented Business or the conduct of activities occurring on the premises thereof. (12) "AduB Tbeater" shall mean a business establishment or concern which, as a regular and substantial course of conduct, presents live entertainment, motion pictures, videos, slide photographs, or other pictures or visual reproductions which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts. (13) "Bar" shall mean any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises for which the 14 3y;14 53 _ J T': lF '=+NN JUAN ';Pp 566 Roe NQl.1 04 '97 !7::37 ORDINANCE N0. -8- September, 1997 license has been issued (14)"Church" shall mean a structure which is used primarily for religious worship and related religious activities at least two days per week. (15) "G -String" shall mean an article of clothing that opaquely covers the buttocks at least one inch on either side of the natal cleft and covers the entirely of the genitalia and pubis. (16) "Health Officer" shall mean a health officer or inspector for the County of Orange or duly authorized representative. (17) "Live Art Class" shalt mean any premises on which all of the following occur: there is conduced a program of instruction involving the drawing, photographing, or sculpturing of live models exposing Specified Anatomical Parts, instruction is offered in a series of at least two (2) classes, the instruction is offered indoors, an instructor is present in the classroom while any participants are present, and pre -registration is required at least twenty-four (24) hours in advance of participation in the class. (18) "Pasties" shall mean an article of clothing that opaquely covers every portion of the breast below the upper radius of the areola. (19) "Permittee" shall mean the person to whom an Adult -Oriented Business Permit or Adult -Oriented Business Performer Permit has been issued in accordance with Title 5. Chapter 27, and Title 9. Chapter 3, Article 6, Section 9-3.626. (20) "Regularly Features" shall mean as it related to Adult -Oriented Businesses, a regular and substantial course of conduct of the person, business or establishment making; or presentations are made. The fact that live performances which are distinguished or characterized by an emphasis upon the display of Specified Sexual Activities or Specified Anatomical Parts which occurs six (6) times a month in. any given year. (2 t) "School" shall mean 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 colt o%Wty or junior college, college, or university. (22) ,Seltually Oriented Material" shall mean any element of Sexually Oriented Merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, or other written, oral, or visual representation or presentation which, for purposes of sexual arousal, provided depictions which are characterized by an emphasis on 7144931053 CITY OF SAN JUAN CAP S66 P09 NOS,! 04 '97 1 8 ORDINANCE NO. -9- September, 1997 matter depictin& describing, or relating to Specified Sexual Activities or Specified Anatomical Parts. (23) "Sexuagy Oriented Merchandise" shall mean sexually oriented implements and paraphernalia, such as, but not limited to: dildos, auto sucks, sexuaNy oriented vibrators, edible underwear, benwa balls, inflatable oriSces, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or Sado-masochistic activity. (24) "Specified Anatomical Parts shall mean any of the following: (i) Less than completely and opaquely covered human genitals; public region, buttocks; or female breast below a point immediately above the top of the areola; or, (ii) Human male genitals in a diw"nible turgid state, even if completely and opaquely covered. (25) "Specified Sexual Activities" shall mean any of the following: (i) Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship, or the sue of excretory function in the context of a sexual relationship, any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, 2oocrastia; or, (ii) Clearly depicted human genitals in a state of sexual stimulation, arousal or tumesscence; or, (iii) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or, (iv) Fondling or touching of nude human genitals, pubic region, buttocks or female breast; or, (v) Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or, (vi) Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or, (vii) Human excretion, urination, menstruation, vaginal or anal irrigation; or, i 144'J31053 k�iTY OF SHN JUAN CAP 566 Pio NO() 04 '971 17:33 ORDINANCE NO. -10- September, 1997 (vii) The removal of clothing to the point where specified anatomical puts are either not opaWely covacd or minimally covered with devices commonly referred to as Pasties and G-striap or equivalent clothing. b. Tide 5, Chapter 27, is hereby added to the Sane Juan Capistrano Municipal Code to read in its entirety as follows: CHAPTER 27 . ADULT-ORIENTED BUSWESS See. 5-27.01 Intent and Purpose. The intent of this Chapter is to regulate Adult Oriented Businesses which, because of the very nature, are believed to have many of the recognized significant secondary effects on the community which include, but are not limited to: depreciated property values, and increased vacancies in residential areas in the vicinity of the Adult -Oriented Businesses; higher crime rates, noise, debris or vandalism in the vicinity of Adult -Oriented Businesses; blighting conditions such as low level of maintenance of commercial premises and parking lots which thereby have a deleterious effect upon adjacent areas. Special regulations of these uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the neighborhoods in the vicinity of the Adult - Oriented Businesses. It is neither the intent, nor effect of this Chapter to restrict or deny access by adults to Sexually Oriented Materials or Merchandise protected by the First Amendment, or to deny access by the distributors or exhibitors of Adult -Oriented Businesses to their intended market. Nothing in this Chapter is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful exposure, sexual conduct, lewdness or obscene or harmful matter or the exhibition or public display thereof. See.5-27.02 Definitions For the purposes of this Chapter, unless otherwise apparent from the context, certain words and phrases used in this Chapter are defined in Appendix "A" of the San Juan Capistrano Municipal Code. Sec. 5-27.03 Perak Required (Adult -Oriented Business Permit) No Adult -Oriented Business shall be permitted to operate, engage in, conduct or carry on business withal the City unless the owner of the business first obtains an Adult -Oriented Business Permit and a Businss License from the City, as well as any other permits or license required by law. The above notwithstanding, no Adult -Oriented Business proposing to provide live entertainment shall be required to obtain a Conditional Use Permit. if an Adult -Oriented Business intends to serve alcoholic beverages, the business shall also be required to obtain a Conditional Use Permit from the City for the service of the alcoholic beverages. An Adult -Oriented Business shall be permitted as a 44 31053 C I T'r OF SAN JUAN CAP 566 P11 NO!) 04 '97 1.^ • _79 ORDINANCE NO. - l l - September, 1997 principal permitted use in the CM (Commercial Manufacturing) and MP (Industrial Park) Districts of the City, subject to the specific design, locational and operational standards contained in Title 9, Chapter 3, Article 6, Section 9-3.626 of the Municipal Code. Sec.5-27.04 Application Requirements The property owner, or authorized agent of the property owner, is eligible to request an Adult-Orientcd Business Permit. A single Adult -Oriented Business Permit shall suffice for the operation of any single Adult -Oriented Business on any permitted site in the City as designated by the Municipal Code and consistent with the provisions of Section 9-3.626. The following information is required at the time an Adult -Oriented Business Permit is submitted to the Planning Services Department: (a) A completed Adult -Oriented Business Permit application (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, whether the partnership is general or limited, and attach 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 standing under the laws os the State 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. (4) 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 or an individual with a ten (10%) percent or greater interest in the business entity shall sign the application. (b) 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. (c) A non-refundable deposit and/or fee as set forth by resolution of the City Council. (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 and addresses of the property owners and, if applicable lessors of the Adult -Oriented Business site. i4433'1053 C IT, ur 644 JL444 CRP 56e -1? tN x i Lad '9 e 17:39 ORDINANCE NO. -12- September, 1997 (e) The address to which notice of action on the application is to be mailed. (f) The mutes of all employees, independent contractors, and other persons who will perform at the Adult -Oriented Business, who are required by Section of this Chapter to obtain an Adult -Oriented Business Performer License (for on-going reporting requirements see Tide 9, Chapter 3, Article 6, Section 9-3,626(d)(10) ). (g) A floor plan or diagram showing the interior configuration of the premises, including a statemew on the uses of the total floor area to be occupied by the Adult -Oriented Business. the floor plan or diagram need not for the purposes of this Permit be professionally prepared, but must be drawn to a designated scale. (h) A certificate and straight-line, to scale drawing prepared by a registered architect or civil engineer within thirty (30) days prior to the submission of the application depicting the building and the portion thereof to be occupied by the Adult -Oriented Business, and the property lines of an church, school, park, residential zone or use within 1,000 feet of the primary entrance of the Adult -Oriented Business. (i) A diagram of the off-street parking areas and premise entries of the Adult -Oriented Business showing the location of the lighting system required by Section 9-3.626 of the Municipal Code including the submission of a photometric analysis. 0) The fact that an applicant possesses other types of state or City permits or licenses does not exempt the applicant from the requirement of obtaining an Adult -Oriented Business Permit. (k) Whether the applicant, any partner if the applicant is a partnership, or any officer of the corporation if the applicant is a corporation has been convicted within the past three (3) years of any of the following: one or more violations of Penal Code sections 315, 316, 2661, 266b, 266c, 266e, 2668, 2661, 647(a), 647(b), and 647(d), any equivalent violation of the code of another state, or the applicant, has had an adult-oriented permit revoked by this City or any other governmental entity within the past three (3) years. (1) A completed fingerprint card of the applicant prepared by the Orange County Sheriffs Department. Sec. 5-27.66 jwvestigation and Action on Application (a) The Pbn *V Director or designee shall within fifteen (15) working days of submission of an application, determine whether the application is complete. If the Planning Director of designee determines that the application is incomplete or the applicant has completed the application improperly, the Planning Director or designee shall, within the aforementioned time period, notify the applicant in writing of such fact. The time period for acting upon the Y144931053 CITY OF SAN JUAt4 CAP 566 P13 k4olf 04 '97 +_^:art ORDINANCE NO. -13- September, 1997 application shall not commence until a complete application has been accepted by the Planning Director. If the applicant's application was determined to be incomplete, upon submission of the revised application and support information the Planning Director or designee shall have fifteen working days to determine completeness. (b) Upon receipt of a completed application and payment of the application and Permit fees, the Planning Director 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 Permit. (c) Within forty-five (45) days of receipt of the completed application, the Planning Director shall complete the investigation, grant or deny the application in accordance with the provisions of this Chapter and Title 9, Section 9-3.626 of the Municipal Code, and so notify the applicant as follows: (1) The Planning Director shall write or stamp "Granted" or "Denied" on the application and the date and sign such notation. (2) If the application is denied, the Planning Director shall attach to the application a statement of the reasons for denial. (3) If the application is granted, the Planning Director shall attach to the application an Adult -Oriented Business 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 address stated in the application. Sec. 5-27.06 Decision to Grant or Deny Permit; Duration of Permit. The Planning Director shall grant the application and issue the Adult -Oriented Business Permit unless: (a) The building, structure, equipment, or location used by the business for which an Adult - Oriented Business Permit is required does not comply with the requirements of the health, zoning, fire and safety laws of the City and the State of California, or with the requirements of this Chapter or provisions of Title 9, Section 9-3.626 of this Municipal Code. (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 -Oriented Business Permit. (c) An applicant is under eighteen (18) years of age. r144zz '.1U53 C! rr' OF SkN JI -444 CAP 566 P14 tG) 3a '9- 17: 40 ORDINANCE NO. -14- September, 1997 (d) The required application and Permit fee has not been paid. (e) VWj n the past three (3) years, the applicant has been convicted of any of the following offenses: one or more violations of Penal Code sections 315, 316, 2661, 266b, 266c, 266e, 2668, 266K 2661, 647(a), 647(6) and 647(d); any equivalent violation of the code of another state, or the applicant has had an adult oriented permit revoked by this City or any other governmental entity within the past three (3) years. If the Planning Director grants the application or if the Planning Director neither grants nor denies the application within the forty-five (45) days after it is stamped as received (determination of complete application), the applicant may begin operating the Adult -Oriented Business for which the Permit was sought, subject to strict compliance with the development and performance standards of Title 9, Section 9-3.626 and the requirements of this Chapter, including but not limited to the renewal requirements of this section. Each Adult -Oriented Business Permit shall expire one (1) year from the date of issuance, and may be renewed only by filing with the Planning Director a written request for renewal, accompanied by the Annual Permit Fee and a copy of the Permit to he renewed. The request for renewal shall be made at least forty-five days before the expiration date of the Permit. When made less than forty-five (45) days before the expiration date, the expiration of the Permit will not be stayed. Applications for renewal shall be acted upon as provided in this Section for action upon applications for Permits. Sec. 5-27.07 Transfer of Adult -Oriented Business Permits. (a) A permittee shall not operate a:-1 Adult -Oriented Business under the authority of an Adult- oriented Business 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 Permit to another person unless and until the transferee obtains an amendment to the Permit from the Planning Director stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the Planning Director in accordance with Sections , accompanies the application with a transfer fee in an amount set by resolution of the City Council, and the Planning Director determines in accordance with Section that the transferee would be entitled to the issuance of an original Adult -Oriented Business Permit. (c) No Patnit may be transferred when the Planning Director has notified the permittee that the Permit has been or may be suspended or revoked. (d) Any attempt to transfer a Permit either directly of indirectly in violations of this section is hereby declared void and the Permit shall be deemed revoked. r ..) J J L b 17 : 41 ORDINANCE NO. -15- September, 1997 See. 5-27.08 Adult -Oriented Business Performer Permit (a) No person shall engage in or participate in any live performance depicting specified anatomical areas or involving 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 Permit shall promptly supplement the information provided as part of the application for the Permit required by Section , 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. Failure to submit such changes shall be grounds for suspension and/or revocation of the Adult -Oriented Business Permit. (b) The Planning Director, shall grant, deny and renew Adult -Oriented Business Performer Permits. (c) The application for an Adult -Oriented Business Performer Permit shall be made on a form provided by the Planning Director. An original and two copies of the completed and sworn permit application shall be filed with the Planning Services Department. (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) A completed fingerprint card of the applicant prepared by the Orange County Sheriff s Department and a, color photograph at least 2" x 2" clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant.. (6)Whether the applicant has ever been convicted of : (i) Any of the offenses set forth in Sections 315, 316, 266x, 266b, 266c, 266e, 266g, 266h, 2661, 647(a), 647(b), and 647(d) of the California Penal Code as those section now exist or may hereafter be amended or renumbered; or (ii) The equivalent of the aforesaid offenses outside the State of California 1-� •7�1 �� I_ 1 i r Ur bF44 JUNr4 �,F#' 566 016 r4a) 0.4 '97 1",:41 ORDINANCE NO. -16- Sgetember, 1997 (7) whether such person is or has ever been licensed or registered as a prostitute, or otherwin authorized by the laws of any other jurisdiction to engage in 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 inclusive dates during which such person was so licensed, registered, or authorized to engage in prostitution. (8) State driver's license or identification number. (9) Satisfactory written proof that the applicant is at least eighteen (18) years of age. (10) If the application is made for the purpose of renewing a permit, the applicant shall attach a copy of the permit to be renewed. (e) The application shall be accompanied by a non-refundable application fee. Said amount of the fee shall be set by resolution of the City Council. (f) Upon receipt of a completed application and payment of the application fees, the Planning Director shalt immediately stamp the application complete and promptly investigate the application Sec. 5-27.09 investigation and Action on Application (Adult -Oriented Business Performer Permit) (a) The Planning Director or designee shall within five (5) working days of submission of an application, determine whether the application is complete. If the Planning Director determines that the application is incomplete or that the applicant has competed the application improperly,. the Planning Director shall promptly notify the applicant of such fact. The time period for granting or denying a Permit shall be stayed during the time that a complete application has not been submitted. (b) Prior to the issuance of the Adult -Oriented Business Performer Permit, the City designated agency shall conduct a background check. Upon satisfactory completion of said background check, the Planning Director shall within five (5) working days, grant or deny the applieatim and so notify the applicant as follows: (1) The Planning Director shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. (2) if the application is granted, the Planning Director shall provide the Adult - Oriented Business Performer with an identification card containing the name, address, photograph and permit number J L- i I r HN CAP 566 P17( t 10) 04 "37 17: 42 ORDINANCE NO. -17- September, 1997 (3) If the application is denied, the Planning Director shall attach to the application a statenaettt of the reasons for denial. (4) if the application is granted, the Planning Director shall attach to the application an Adult -Oriented Business Performer Permit. (5) The application as granted or denied and the Permit, if any, shall be placed in the United States mail, first class postage prepaid, addressed tot he applicant at the residence address stated in the application. (c) The Planning Director shall grant the application and issue the Permit unless the application is denied for one or more of the reasons set forth in subsection (e) of this section. (d) If the Planning Director grants the application or if the Planning Director neither grants nor denies the application within five (5) working days of the completion of the background check, the applicant may begin performing in the capacity for which the license was sought. (e) The Planning Director 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 or in any report or document required to be filed with the application. (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. A Permit may be issued if the latest date of registration occurred more than five (5) years prior to the date of the application. (5) The applicant has been convicted of any of the offenses enumerated in Section , or convicted of an offense outside the State of California that would have constituted any of the described offenses if committed with the State of California. A Permit may be issued to any person convicted or the described crimes in the conviction occurred more than five (5) years prior to the date of the application. (f) 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 Planning Services Department, 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 forty-five days before the expiration date of the Permit. When made less than the forty-five (45) days before the �_. i i r uF- :Dt4i .i uk-4 CF -F 566 P19 NO) 04 '97 17, 42 ORDINANCE NO. -18- September, 1997 expiration date the expiration of the Permit will not be stayed. Applications for renewal shall be acted on as provided in subsection c and e, above. Set. 5-27,10 4=PCU iiGn sr Revocation of Adult -Oriented Business Permit or Adult -Oriented Performer Permit. An Adult -Oriented Business Permit or Adult -Oriented Business Performer Permit may be suspended or revoked in accordance with the procedures and standards of this Chapter and Title 9, Section 9-3.626 of this Municipal Code. (a) On determining that grounds for Permit revocation exist, the Planting Director 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 hearing is based, the pertinent Code sections, and a brief statement of the factual matter in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the Permittee, or shall be delivered to the Permittee personally, at least ten ( l 0) days prior to the hearing date. Hearings shall be conducted in accordance with procedures established by the Planning Director, but at a minimum shall include the following: (l) All parties involved shall have a right to offer testimonial, documentary, and tangible evidence bearing on the issues; may be represented by counsel; shall have the right to confront and cross-examine witnesses. 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 Director may be appealed in accordance with Section of this Chapter. (b) A Permittee may be subject to suspension or revocation of his or her Permit, or be subject to other appropriate disciplinary action, for any of the following causes arising from the acts or omissions of the Permittee, or a employee, Performer, independent contractor, agent, partner, director, stockholder, or manager of an Adult -Oriented Business: (1) The Permittee has knowingly made false, misleading or fraudulent statement of material facts in the application for a Permit, or in any report or record required to be filed with the City. (2) The Permittee, employee, agent, partner, director, stockholder, or manager of an Adyrlt-Oriented Business has knowingly allowed or permitted, and has failed to made a reasonable 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 Bytsiness: 1 J JUHN CAP 566 P 19NO 04 '97 17:43 ORDINANCE NO. -19-September, 1997 (i) Any act or unlawful sexual intercourse, sodomy, oral copulation, or masturbation. (ii) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur. (iii) Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code. (iv) 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. (v) Any act constituting a violation of provisions of 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. (vi) Any conduct prohibited by this Chapter or Title 9, Section 9-3.626 of this Municipal Code. For the purposes of this section, an Adult -Oriented Business Permittee has knowingly permitted a violation when a violation occurs anytime after having received written notice of a previous violation. (3) Failure to abide by any disciplinary action previously imposed by an appropriate City official. (c) After holding the hearing in accordance with the provisions of this Section, if the Planning Director finds and determines that there are grounds for disciplinary action, based upon the severity of the violation, the Planning Director shall impose one of the following: (1) Suspension of the Permit for a specified period not to exceed six months; (2) Revocation of the Permit. See. 5-27.11 Appeal of Denial, Suspension or Revocation of Permit. After denial of an application for an Adult -Oriented Business Permit or an Adult - Oriented Business Performer Permit, or after denial or renewal or a Permit, or suspension or revocation of a Permit , the applicant or person to whom the Permit was granted may seek review of such administrative action by the City Manager in a manner provided herein. Any person seeking to appeal a decision of the Planning Director shall file a written notice of appeal with the Planning Director not later than fifteen (15) calendar days after the date of the notice denying the application or permit renewal or imposing the suspension or 144931053 CIT' - nF 5,44 .r!JAra CC4P 565 P20 "10!.! 04 '97 17:47 ORDINANCE NO. -20- September, 1997 revoctgrt. The notice shall state, with specificity, the specific factual and legal basis of the apped,, JU Pim ing Director shall, within ten (10) days, schedule a heating before the City ManaW or his or her designee and notify the appellant, in writing, of the day, time and location of the hearing which shall be held no later than thirty (30) days from the date the appeal has been filed. The appeal shall be conducted in accordance with the same procedures established by the Planning Director pursuant to Section 5-27.10. The City Manager shall provide the appellant with a written decision within ten (10) working days of the conclusion of the hearing. If the denial, suspension or revocation is affirmed on review, the applicant, 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 Permittee. C. Title 9, Chapter 3, Amick 4, Section 9-3,415, entitled Commercial Manufacturing (CM) District is hereby amended as follows: (1) Section 9-3.4215(b), Principal Uses and Structures Permitted, add Adult -Oriented Business (subject to the provisions of Title 5, Chapter 27 and Section 9-3.626 of this Title). (2) Section 9-3 415(d), Conditional Uses and Structures Permitted, add Sale of Alcoholic Beverages in conjunction with a permitted Adult -Oriented Business. d. Title 9, Chapter 3, Article 4, Section 9-3.417, entitled Industrial Park (MP) District is hereby amended as Wows; (1) Section 9-3.4217(b), Principal Uses and Structures Permitted, add Adult -Oriented Business (subject to the provisions of Title 5, Chapter 27 and Section 9-3.626 of this Title). (2) Section 9-3.415(d), Conditional Uses and Structures Permitted, add Sale of Alcoholic Beverages in conjunction with a permitted Adult -Oriented Business. e. Title 9, Chapter 3, Article 6, Section 9-3.626, entitled Adult Businesses is hereby amended in its entirety to read as follows: Sec. 9-3,626. Adult -Oriented Businesses. (a) purpose and intern. Special locational regulations and operational standards of Adult- Oriegd Businesses is necessary to ensure that the secondary adverse effects caused by the operational characteristics will not contribute to the blighting or downgrading of the surrounding neighborhoods, nor the concentration or clustering of such businesses in any area. (b) Adult- Oriented Business. Adult -Oriented Businesses shall consist of the following types of uses as defined in Appendix "A" of the Municipal Code: 566 P21 '101 i 04 '9-, 1.7; 44 ORDINANCE NO. -21- September, 1997 (1) Adult book store. (2) Adult hotel or motel. (3) Adult mini -motion picture theater, adult motion picture arcade, Adult motion picture theater. (4) Adult cabaret, nightclub theater or other establishment which features live performances where such performers are distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas (5) Encounter center or rap studio as defined in Appendix "A" of the Municipal Code. (6) Adult model studio. (c) EstabWunent. Adult -Oriented Businesses may be established as a principal permitted use in those districts so identified under Article 4 of this Title. Said establishment of use shall be subject to the following locational and design standards: (1) The Adult -Oriented Business shall not be located within three hundred (300') feet of any residential zone or use unless the proposed location of the Adult -Oriented Business is physically separated from the residential zone or residential use by a freeway or storm drainage channels for Trabuco and San Juan Creeks. (2) The Adult -Oriented Business shall not be located within 300 feet of any lot upon which there is properly located a public park, school (public or private) or religious institution, unless the proposed location is physically separated from the public park, school or religious institution by a freeway or storm drainage channels for Trabuco and San Juan Creeks. (3) The Adult -Oriented Business shall not be located within 1,000 feet of any other Adult -Oriented Business. (4) The Adult -Oriented Business shall provide one (1) parking space per occupant as based upon the maximum occupancy as determined by the Building Official. Said off- street parking area and the premise entries shall be illuminated from dusk to closing hours of operation with a lighting system consistent with the design provision of Section 9-3.614 which provides an average maintained horizontal illumination of one (l) foot candle of light on the parking surface and all walkways. (5) The Adult -Oriented Business shall located completely within a permanent building affixed with a foundation to the ground. (6) The exterior of the building including windows and entrances shall be designed to prohibit the observation of any materials or activities depicting, describing or relating to any specified sexual activities or specified anatomical' areas from any location outside the establishments building. This provision shall preclude any display, decoration, sign (excepting the name of the facility), show window or other opening. 144931053 CIT OF SHra J�_,HN CRP 556 0= N01.! 04 ''?7 1--,14. ORDINANCE NO. -22- September, 1997 (7) The Adult -Oriented Business premises shall provide sufficient sound -absorbing hmdation so that noise generated inside the premises is not audible anywhere on any adjacent property or public right-of-way or within any other building or other separate unit within the same building or other buildings located on the same property. (8) All interior areas of the premises within which patrons are permitted (except restrooms) shall be open to an unobstructed view with the naked eye, and without the aid of any cameras, mirrors or other devices by the management at all times. (9) An interior floor plan shall designate all areas of the establishment that patrons or visitors are permitted, along with areas that are to be restricted to employees use only. (10) Separate restroom facilities shall be provided for patronstvisitors and employees. These separate facilities shall include separate restrooms for male and female patrons and separate restroom facilities for male and female employees. The restrooms shall be free from any Adult Material. Restrooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment (11) All areas of the Adult -Oriented shall be illuminated at the following minimum footcandle levels: Adult -Oriented Business Minimum oot-Candles Bookstores and other retail 20 establishments Theaters and cabarets 5 (except during performances, at which times lighting shall beat least 1.25 foot- candles) Arcades 10 Motels/Hotels 20 (in all public areas) Modding/Rap Studios 20 (12) All live performance areas shall be upon a stage at lease eighteen (18") inches above the level of the floor which shall be separated by a distance of at least ten (101 feet from the nearest area designated for patrons and visitors. This ten foot separation will be a restricted to employees only while the stage is occupied by a performer. 1": ORDINANCE NO. -23- September, 1997 (13) Separate dressing facilities shall be provided and exclusively dedicated for the use of "performers". (14) Access for performers between the stage and the dressing rooms shall be completely separated from the patrons. (15) The business shall provide an entrance/exit for performers and employees which is completely separate from the entrance/exit used by patrons. (Ib) Fixed rail(s) at least thirty (30") inches in height shall be maintained establishing the separations between performers and patrons required by this subsection. (d) Operational Standards. Adult -Oriented Businesses and Adult -Oriented Business Performers shall comply with the following operational standards, Failure to comply with these operational standards may be cause for suspension or revocation of the Adult -Oriented Business Permit and/or the Adult -Oriented Business Performer Permit. (1) 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 section shall only apply to any physical contact on the premises, including the parking lot of the Adult - Oriented Business. (2) No patron shall directly pay or give any gratuity to any performer. (3) No owner or other person with managerial control over the Adult -Oriented Business (as that term is defincd by the Municipal Code) shall permit any person on the premises of the Aduh-Oriented Business to engage in a Live showing of the human male or female genitals, pubic area or natal cleft 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 discernible turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical pan required to be covered. (4) Adult -Oriented Businesses shall employ security guards in order to maintain the public peace and safety based upon the following standards: (i) Adult -Oriented Businesses featuring live entertainn=it shall provide at least one (1) security guard at all times while the business is open. If the occupant limit of the premises is greater than thirty-five (3 S) persons, an additional security guard shall be on duty. One additional security guard shall be added for each additional increase in occupancy of thirty-five persons. 1ai 566 P24 tn '9" 17:35 ORDINANCE NO. -24- September, 1997 (ii) Security guards for other Adult -Oriented Businesses shall be required at a ratio on one (1) guard for every 100 -person occupancy limit. (iii) Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. Security guards shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of state law. No security guard required pursuant to this subsection shall act as a door person, ticket seller, ticket taker, admittance person, sole occupant of the manager's station while acting as a security guard. (S) Adult -Oriented Businesses shall be open for business only between the hours of 8:00 a.m. and midnight on any particular day. '(6) All indoor areas of the Adult -Oriented Business within which patrons are permitted, except restrooms, shall be open to an unobstructed view with the naked eye without the aid of any cameras, minors or other devices from a manager's station located in the public portion of the establishment by the ntanagcment at all times. (7) The building entrance to an Adult -Oriented Business shall be clearly and legibly posted with a notice indicating that persons under eighteen (18) years are precluded from entering the premises. Said notice shall be constructed and posted to the satisfaction of the Planning Director or designee. No person under the age of eighteen (18) years shall be permitted within the premises at any time. (8) No patron is permitted access to any area of the premises which has been designated as an area in which patrons are not to be permitted. (9) Adult -Oriented Businesses that have Individual Viewing Areas shall comply with the following: . (i) The view area shall remain unobstructed by any doors, walls, merchandise, display racks, or other merchandise and shall be visible at all times by management as specified by subsection 6, above. (o) No Individual Viewing Area may be occupied by more than one person at a time. (iii) The walls or partitions between Individual Viewing Areas or booths shall be mimuined in good repair at all times, with no holes or other openings in any wall or partition of any Individual Viewing Area such as to allow physical contact through a partition between the occupant of any such Individual Viewing Area an a person on the outside. All Individual Viewing Areas shall be separated from other Individual ORDINANCE NO. -25- September, 1997 Viewing Areas by a five (5) foot buffer. (iv) Customers, patrons, or visitors shall not be allowed to stand idly by the vicinity of any such Individual Viewing Area or form remaining 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. (v) The floors, seats, walls and other interior portions of all Individual Viewing Areas shall be maintained clean and free from waste and bodily secretions. (10) Every permittee of an Adult -Oriented Business which provides live entertainment depicting specified anatomical arcas or involving specified sexual activities, 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 sheriff deputy or health officer retained as an employee by the City. (11) Every Adult -Oriented Business shall display at all times during business hours the permit issued pursuant to the provisions of Title 5, Chapter 27 of the Municipal Code 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. (12) Each Adult -Oriented Business Performer required to have a Permit, shall have such card available for inspection at all times during which such person is on the premises of the Adult -Oriented Business. (13) In shall be unlawful for any permittee, operator, or other person in charge of any Adult -Oriented Business to employ, or provide service for which it requires such permit, to any person who is not at least eighteen (18) years of age. (14) It shall be unlawful for any permittee, operator or other person in charge of any Adult -Oriented Business to permit to enter, or remain within the Adult -Oriented Business, any person who is not at least eighteen years of age. (15) 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 entertainment depicting specified anatomical areas or involving specified sexual activities to allow any person to perform such entertainment who is not in possession of a valid, unrevoked Adult -Oriented Business Performer Permit. (16) An applicant or Permittee shall permit representatives of the Sheriffs Department, Orange County Health Department, Orange County Fire Authority; Planning Services Department, or other City Departments or Agencies to inspect the ?144y51t)53j _IT`r DF SHN JUAt4 CAP 566 P26 r103U C+1 '97 17.46 ORDINANCE NO. _ -26- September, 1997 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 >ainesses, at any time it is occupied or opened for business. A person who operated an Adult -Oriented Business or his or her agent or employee is in violation of the provisions of this Section if he or she refuses to permit such lawRtl inspection of the premises at any time it is occupied or open for business. (17) The provisions of the Section regulating Adult-Orietsted Businesses are not intended to be exclusive an compliance therewith shall not excuse non-compliance with any other regulations pertaining to the operation of businesses as adopted by the City Council. SECTION 3 SEVERABILITY If any section, subsection, subdivision, paragraph sentence, dause, or phrase in this ordinance or any pan 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 ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, chapter, sentence, clause, or phrase thereof irrespective of the fact that any one (1) or more chapters, 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 licensing regulations which are specifically applicable to Adult -Oriented Business uses. Such uses are already allowed under the City's c7dsdng zoning regulations. Therefore, it can be found with certainty that there is no possibility that this ordinance will have a significant adverse effect on the environment, and therefore the adoption of this ordinance is exempt from the California Environmental Quatity Act (CEQA) pursuant to Section 15061 (b)(3) of the CEQA Guidelines. SECTION S EFFECTIVE DATE. This ice"go into effect and be in full force and operation from and after thirty (30) days after its Snel passage and adoption. SECTION 6 CITY CLERK'S CERTIFICATION. The City Clerk shall certify to the adoption of this Ordinance and cause the satire to be posted at the duly designated posting places within the'city and published once within fifteen (15) days after. ORDrNANCE NO. -27- September, 1997 passage and adoption as required by law; or, in the alternative, the City Clerk may cause to be published a summary of this Ordinance and a certified copy of the text of this Ordinance shall be posted in the Office of the City Clerk five (S) days prior to the date of adoption of this Ordinance; and , within fifteen (15) days after adoption, the City Clerk shall cause to be published the aforementioned summary and shall post a certified copy of this Ordinance, together with the vote for and against the same, in the Office of the City Clerk. PASSES, APPROVED, AND ADOPTED this day of 1997. David A Swerdlin, Mayor ATTEST CITY CLERK C'wPWJN6^P1)0CS\ AUR1)CA"0Y 1-:47 LEAGUE OF CALIFORNIA CITIES APPENDIX°A° MODEL ORDINANCE This Model Ordinance consists of two parts: (1) the zoning part, sections Z101 -Z105, and (2) the regulatory.part, sections R101 -R407. CAVEAT: As with all "model" ordinances, care should be taken to review for consistency with your general plan and your existing provisions, especially definitions and zoning designations, and local CEQA compliance procedures. Moreover, application of the zoning restrictions in any particular locality should be carefully reviewed to ensure compliance with the requirements in Tooanea Press. ORDINANCE NO. AN ORDINANCE ADDING —TO _ OF OF THE MUNICIPAL, CODE PERTAINING TO ZONING REGULATIONS APPLICABLE TO ADULT-ORIENTED BUSINESSES AND ADDING, OF THE MUNICIPAL CODE RELATING TO REGULATION OF ADULT-ORIENTED BUSINESSES. The Council of the City of __ does ordain as follows: SECTION 1. FINDINGS. The City Council of the City of hereby finds that: (a) The City Council, in adopting this ordinance, takes legislative notice of the existence and content of the follotiving 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) Both the proximity of Adult -Oriented Businesses 'to sensitive land uses and the concentration of Adult -Oriented Businesses tend 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 residential, recreational, religious, educational and other Adult -Oriented Business uses can cause other businesses and residences 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 distnbution 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 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 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 parks, schools, 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. (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 , and a ' t sufficient reasonable number of appropriate locations for Adult Oriented Businesses are provided by this ordinance. (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: Tooanga Press, et al. v. Citv 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 Valleio v. Adult Books, et al., 167 Ca1.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. Citv 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. 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 also finds that locational criteria alone do not adequately protect the health, safety, and general welfare of the citizens of the City of , 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 Key. 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. _l (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 entertainers, 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 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 recognizes the possible harmful effects on children and minors exposed to the effects of such Adult -Oriented Businesses and the 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 ; 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 in enacting this ordinance, or any provision thereof, to condone or legitimize the distribution of obscene material, and the City of 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 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) The City of 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, entertainers, and other persons who publicly perform Specified Sexual Activities or publicly display Specified Anatomical Parts in Adult -Oriented Businesses (as those terms are defined herein) (collectively referred to m '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; 111 • T (3) Evidence indicates that Performers at Adult -Oriented Businesses have been found to engage in acts of prostitution with patrons of the establishment; and n3 (1) 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 (m) The City Council also finds, as a wholly independent basis, that it has a substantial public interest in y preserving societal order and morality, and that such interest is furthered by a prohibition on public nudity; and (n) 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; and (o) 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 (p) The City Council finds that preventing the exchange of money between entertainers and patrons also ' _r reduces the likelihood of drug and sex transactions occurring in Adult -Oriented Businesses; and r (q) Requiring separations between entertainers and patrons reduces the likelihood that such persons will negotiate narcotics sales and/or transact sexual favors within the Adult -Oriented Business. (r) 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 conducts within Adult -Oriented Businesses, and to facilitate the inspection of the interior of the premises thereof by law enforcement personnel. SECTION 2. AMENDMENT OF CODE. entitled "Adult -Oriented Businesses" is hereby added to of the Municipal Code to read as follows: ARTICLE — ADULT-ORIENTED BUSINESSES. SEC. Z101. 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 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 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. Z102. 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: (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 human (i) genitals or pubic region; (ii) buttocks; 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; (3) Any device, costume or covering that simulates any of the body parts included in subdivisions (1) or (2) above. (c) Specified sexual activities. As used herein, "specified sexual activities" shall mean and include any of the following, whether performed directly or indirectly through clothing or other covering: (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, T{1 • (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 -Oriented Businesses. "Adult -Oriented Businesses" means any one of the following: (1) Adult arcade. .'The term "adult arcade" as used in this chapter, is an establishment where, for any form of consideration, one or more still or motion picture projectors, or similar machines, for viewing by five (S) 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. (2) Adult bookstore. The term "adult bookstore" as used in this chapter, is 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 or other form 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. (3) Adult cabaret. The term "adult cabaret" as used in this chapter, means a nightclub, restaurant, or similar business establishment which: (1) regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or (2) which regularly features persons who appear semi-nude•, and/or (3) shows 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. (4) Adult hotel/motel. The term "adult hotel/motel" as used in this chapter, means a hotel or motel or similar business establishment offering public accommodations for any form of consideration which, (1) 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 (2) rents, leases, or lets any c4 room for less than a six (6) hour period, or rents, leases, or lets any single room more than twice in a 24-hour period. > - (S) Adult motion picture theater. The term "adult motion picture theater" as used in this chapter, is a business establishment where, for any form of consideration, films, computer generated images, motion pictures, video cassettes, slides or similar _ photographic reproductions are shown, and 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. 1 r�. COM42 (6) Adult theater. The term "adult theater" as used in this chapter, means a theater, concert hall, auditorium, or similar establishment which, 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. (7) Modeling studio. The term "modeling studio" as used in this chapter, means a business which 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." (e) Church. The term "church" as used in this article, is a structure which is used primarily for religious worship and gelated religious activities. (f) Distinguished or characterized by an emphasis upon. As used in this ordinance, the term distinguished or characterized by an emphasis upon" shall mean and refer to the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films "which 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. See Pringle v. Citv of Covina, 115 Ca1.App.3 131 (1981). (g) Regularly Features. 'Che term "regularly features" with respect to an adult 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. (h) School. The term "school" as used in this ordinance, is 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. (i) 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. SEC. Z103. MINIMUM PROXIMrry REQUIREMENTS. No Adult -Oriented Business shall be established or located in any zone in the City other than or within certain distances of certain specified land uses or zones as set forth below: (a) No such business shall be established or located , or within (feet) of any other Adult - Oriented Business. (b) No such business shall be established or located within feet from any existing residential zone or use, park, church, school. (c) The distances set forth above shall be measured as a radius from the primary entrance of the Adult -Oriented Business to the property lines of the property so zoned or used without regard to intervening structures. SEC. Z104. AMORTIZATION OF NONCONFORMING ADULT-ORIENTED BUSINESS USES. Any use of real property existing on , which does not conform to the provisions of Section Z103, 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 for for _ year(s) after the effective date of this ordinance.] On or before such date, all such nonconforming uses shall be terminated unless an extension of time has been approved by the in accordance with the provisions of Section Z105. (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. (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, but which does not conform to the provisions of Section Z103 shall be terminated within one (1) year of the date of annexation unless an extension of time has been approved by in accordance with the provisions of Section Z105. SEC. Z 105. EXTENSION OF TIME FOR TERMINATION OF NONCONFORMING USE. The owner or operator of a nonconforming use as described in Section Z104 may apply under the provisions of this section to foran 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 Z103, 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 at least ninety (90) days but no more than one hundred eighty (180) days prior to the time established in Section Z104 for termination of such use. (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 shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within 45 days of receipt of the application. All parties involved shall have the right to offer testimonial, documentary and tangible evidence - OOM 44 bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. 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 hearing officer shall be final and subject to judicial revielr pursuant to Code of Civil Procedure section 1094.6.s (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, and shall be approved only if the _ makes all of the following findings or such other findings as are required by law. (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 _; (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 Z103. SECTION 3. AMENDMENT OF CODE. of the Municipal Code is hereby amended to read as follows: CHAPTER . ADULT-ORIENTED BUSINESSES ARTICLE 1. GENERAL PROVISIONS SEC. R101. LEGISLATIVE PURPOSE. It is the purpose of this ordinance 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 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. SEC. R102. DEFINITIONS. For the purpose of this chapter the following words and phrases shall have the meanings respectively ascribed to them by this section: (a) Adult -Oriented Businesses. "Adult -Oriented Businesses" means any one of the following: (1) Adult arcade. The term "adult arcade" as used in this chapter, is an establishment where, for any form of consideration, one or more still or motion picture projectors, or similar machines, for viewing by five (S) or fewer persons each, are used to show films, computer generated • images, motion pictures, video cassettes, 'slides or other a 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. (2) Adult bookstore. The term "adult bookstore" as used in this chapter, is 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 or other form 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. (3) Adult cabaret. The term "adult cabaret" as used in this chapter, means a nightclub, restaurant, or similar business establishment which: (1) regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or (2) which regularly features persons who appear semi-nude; and/or (3) shows 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. (4) Adult hotel/motel. The term "adult hotel/motel" as used in this chapter, means a hotel or motel or similar business establishment offering public accommodations for any form of consideration which, (1) 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 (2) 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 period. (5) Adult motion picture theater. The term "adult motion picture theater" as used in this chapter, is a business establishment where, for any form of consideration, films, computer generated images, motion pictures, video cassettes, slides or similar photographic reproductions are shown, and 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. (6) Adult theater. The term "adult theater" as used in this chapter, means a theater, concert hall, auditorium, or similar establishment which, 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. 1 (7) Modeling studio. The term "modeling studio" as used in this chapter, means a business which provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who, for the purposes of sexual stimulation of patrons, display a "Specified anatomical areas" to be observed, sketched, photographed, painted, sculpted z. or otherwise depicted by persons paying such consideration. "Modeling studio" does not x 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 -Oriented Business Operator. �' Adult -Oriented Business Operator" (hereinafter "operator") means a person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of an Adult -Oriented Business or the conduct or activities occu.-ring on the premiscs thereof. (c) Applicant. 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 any other operator, manager, employee, or agent of an Adult -Oriented Business. (d) Bar. For the purposes of this ordinance [chapter], a bar is defined as anv commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises. (e) Distinguished or characterized by an emphasis upon. As used in this ordinance, the term "distinguished or characterized by an emphasis upon" shall mean and refer to the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films "which 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. See Pringle v. City of Covina, 115 Ca1.App.3 151 (1981). (f) Figure model. "Figure model" means any person who, for • pecuniary compensation, consideration, hire or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted. (g) Health Officer_ The Health Officer of the City of or his or her duly authorized representative. (h) Nudity or a state of nudity. "Nudity or a state of nudity" means the showing of the 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. (i) Operate an Adult -Oriented Business. As used in this article "operate an Adult -Oriented Business" means the supervising, managing, inspecting, directing, organizing, controlling or in any way being responsible for or in charge of the conduct of activities of an Adult -Oriented Business or activities within an Adult -Oriented Business. Permittee. "Permittee" means the person to whom an Adult -Oriented Business Permit is issued. Person. Any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character. Police Chief. The Police Chief of the City of or the authorized representatives thereof. (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered. (3) Any device, costume or covering that simulates any of the body parts included in subdivisions (1) or (2) above. (p) Specified sexual activities. As used herein, "specified sexual activities" shall mean and include any of the following, whether performed directly or indirectly through clothing or other covering: (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. SEC. R103. PERMITS REQUIRED. (a) It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City of , 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 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 as herein required. (Adult -Oriented Business Performer Permit) (m) Regularly Features. The term "regularly features" with respect to an adult 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. (n) 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. (o) Specified anatomical areas. As used herein, "specified anatomical areas" shall mean and include any of the following: (1) Less than completely and opaquely covered human (i) genitals or pubic region; (ii) buttocks; and (iii) female breast below a point immediately above the top of the areola; and (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered. (3) Any device, costume or covering that simulates any of the body parts included in subdivisions (1) or (2) above. (p) Specified sexual activities. As used herein, "specified sexual activities" shall mean and include any of the following, whether performed directly or indirectly through clothing or other covering: (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. SEC. R103. PERMITS REQUIRED. (a) It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City of , 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 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 as herein required. (Adult -Oriented Business Performer Permit) ARTICLE 2. APPLICATION AND PERMITS SEC. R201. ADULT-ORIENTED BUSINESS REGULATORY PERMIT REQUIRED. (a) Every person who proposes to maintain, operate or conduct an Adult -Oriented Business in the City of shall file an application with the Police Chief upon a form provided by the City of - _ and shall pay a filing fee, as established by resolution adopted by the City Council from time to time, which shall not be refundable. SEC. R202. APPLICATIONS. (a) Adult -Oriented Business Regulatory Permits are nontransferable, except in accordance Mth Section R205. 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, and attach 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 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 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 Permit is requested and the proposed address where the Adult -Oriented Business will operate, plus the names 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 R206 to obtain an Adult -Oriented Business Performer License (for ongoing reporting requirements see Section R206). (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 rrjj = 000149 professionally prepared, but must be drawn to a designated scale or drawn iNith 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 thirty (30) days prior to application a depicting the building and the portion thereof to be occupied by the Adult -Oriented Business, and: (1) the property line of any other Adult -Oriented Business within of the primary -_ entrance of the Adult -Oriented Business for which a Permit is requested; and (2) the property lines of any church, school, park, residential zone or use within of the primary entrance of the Adult -Oriented Business. (i) A diagram of the off-street parking areas and premises entries of the Adult -Oriented Business showing the location of the lighting system required by Section R301(c). (j) If the Police Chief determines that the applicant has completed the application improperly, the Police Chief shall promptly notify the applicant of such 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 Police Chief to act on the application. The time period for granting or denying a 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 state or City permits or licenses does not exempt the applicant from the requirement of obtaining an Adult -Oriented Business Regulatory Permit. SEC. 8203. INVESTIGATION AND ACTION ON APPLICATION. (a) Upon receipt of a completed application and payment of the application and Permit fees, the Police Chief 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 thirty (30) days of receipt of the completed application, the Police Chief 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 Police Chief shall write or stamp "Granted" or 'Denied" on the application and date and sign such notation. (2) If the application is denied, the Police Chief shall attach to the application a statement of the reasons for denial. (3) If the application is granted, the Police Chief shall attach to the application an Adult - Oriented Business Regulatory 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 address stated in the application. (c) The Police Chief shall grant the application and issue the Adult -Oriented Business Regulatory Permit upon findings that the proposed business meets the locational criteria of Section Z103; -= 000150 and that the applicant has met all of the development and performance standards and requirements of Section 8301, unless the application is denied for one or more of the reasons set forth in Section R204. The Permittee shall post the Permit conspicuously in the Adult -Oriented Business premises. (d) If the Police Chief grants the application or if the Police Chief neither grants nor denies the application within thirty (30) days after it is stamped as received (except as provided in Section R202 0), the applicant may begin operating the Adult -Oriented Business for which the Permit was sought, subject to strict compliance with the development and performance standards and requirements of Sections R301. SEC. R204. PERMIT DENIAL. The Police Chief 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 «ith the requirements and standards of the health, zoning, fire and safety laws of the City and the State of California, or 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. (e) The Adult -Oriented Business does not comply with the zoning ordinance locational standards, sections Z103 -Z105. Each Adult -Oriented Business Regulatory Permit shall expire one (1) year from the date of issuance, and may be renewed only by filing with the Police Chief a written request for renewal, accompanied by the Annual Permit 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. When made less than thirty (30) days before the expiration date, the expiration of the Permit will not be stayed. Applications for renewal shall be acted on as provided herein for action upon applications for Permits. SEC. 8205. 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 Police Chief stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the Police Chief in accordance with Sections R201 and R202, accompanies the application with a 1 11 transfer fee in an amount set by resolution of the City Council, and the Police Chief determines in accordance with Section R203 that the transferee would be entitled to the issuance of an original Permit. (c) No Permit may be transferred when the Police Chief has notified the permittee that the Permit has been or may be suspended or revoked. (d) Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and the Permit shall be deemed revoked. SEC. R206. ADULT-ORIENTED BUSINESS PERFORNIER PERMIT. (a) No person shall engage in or participate in any live performance depicting specified anatomical areas or involving 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 R201, 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. Failure to submit such changes shall be grounds for suspension of the Adult -Oriented Business Regulatory Permit. (b) The Police Chief shall grant, deny and renew Adult Business Employee Permits. (c) The application for a Permit shall be made on a form provided by the Police Chief. An original and two copies of the completed and sworn permit application shall be filed with the Police Chief. (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, 266i, 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 prostitution in such other ,jurisdiction. If any person mentioned in this subsection has ever been OOOU2 e 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) The applicant's fingerprints on a form provided by the Police Department, and a color photograph clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant; (10) 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. (f) Upon receipt of an application and payment of the application fees, the Police Chief shall immediately stamp the; application as received and promptly investigate the application. (g) If the Police Chief determines that the applicant has completed the application improperly, the Police Chief shall promptly notify the applicant of such fact and grant the applicant an extension of time of not more than ten (10) days to complete the application properly. In addition, the applicant may request an extension, not to exceed ten (10) days, of the time for the City Manger to act on the application. The time period for granting or denying a Permit shall be stayed during the period in which the applicant is granted an extension of time. SEC. 8207. INVESTIGATION AND ACTION ON APPLICATION. (a) Within five (5) days after receipt of the properly completed application, the Police Chief shall grant or deny the application and so notify the applicant as follows: (1) The Police Chief shall write or stamp "Granted" or "Denied" on the application and date and sign such notation. (2) If the application is denied, the Police Chief shall attach to the application a statement of the reasons for denial. (3) If the application is granted, the Police Chief shall attach to the application an Adult - Oriented Business Employee 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. (b) The Police Chief 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. 000153 (c) If the Police Chief grants the application or if the Police Chief neither grants nor denies the r^. �7 application within five (5) days after it is stamped as received (except as provided in Section R206(g), the applicant may begin performing in the capacity for which the License was sought. (d) The Police Chief 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 or in any report or document required to be filed with the application; (2) The applicant is under eighteen (18) years of age; ; (3) The Adult -Oriented Business Employee 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 R206(d)(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 Police Chief 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. When made less than thirty (30) days before the expiration date, the expiration of the Permit will not be stayed. Applications for renewal shall be acted on as pro-zded herein for applications for Permits. SEC. R208. SUSPENSION OR REVOCATION OF ADULT-ORIENTED BUSINESS REGULATORY PERMITS AND ADULT-ORIENTED BUSINESS PERFORMER PERMITS. An Adult -Oriented Business Regulatory Permit or Adult -Oriented Business Employee Permit may be =_ suspended or revoked in accordance with the procedures and standards of this Section. (a) On determining that grounds for Permit revocation exist, the Police Chief 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 hearing is based, the pertinent Code sections, and a brief statement of the factual matters in support thereof. The. notice shall be mailed, postage prepaid, addressed to the last known address of the Permittee, 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 Police Chief, 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; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the 000154 _ h 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 Police Chiefs decision may be appealed in accordance with Section 8209. (b) A Permittee may be subject to suspension or revocation of his Permit, or be subject to other appropriate disciplinary action, for any of the following causes arising from the acts or omissions of the Permittee, or an, employee, agent, partner, director, stockholder, or manager of an Adult - Oriented 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 filed with the City. (2) The Permittee, employee, agent, partner, director, stockholder, or manager of an Adult - Oriented Business has knowingly allowed or permitted, and has failed to make a reasonable 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: (i) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation. (ii) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur. (iii) Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code. (iv) 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. (v) 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. (vi) Any conduct prohibited by this chapter. (3) Failure to abide by an disciplinary action previously imposed by an appropriate City official. (c) After holding the hearing in accordance with the provisions of this Section, if the Police Chief finds and determines that there are grounds for disciplinary action, based upon the severity of the violation, the Police Chief shall impose one of the following: - (1) A warning; (2) Suspension of the Permit for a specified period not to exceed six months; Q00uS (3) Revocation of the Permit. SEC. R209. APPEAL OF DENIAL. SUSPENSION OR REVOCATION. i 1 After denial of an application for an Adult -Oriented Business Regulatory Permit or an Adult -Oriented Business Performer Permit, or after denial of renewal of a Permit, or suspension or revocation of a Permit, _ the applicant or person to whom the Permit was granted may seek review of such administrative action by the in accordance with the provisions of of the Municipal Code. If the denial, suspension or revocation is affirmed on review, the applicant, 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 Permittee. ARTICLE 3. FACILITIES AND EMPLOYEES. SEC. 8301. ADULT-ORIENTED BUSINESS DEVELOPMENT AND PERFORMANCE STANDARDS. (a) Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated, designed and provided in accordance with the Fire Department and building regulations and standards adopted by the City of (b) 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 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 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. (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, an Adult -Oriented Business shall be open for business only between the hours of 8:00 - a.m. and midnight on any particular days - t ■ 0wr, 6 Si (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. Said notice shall be constricted and posted to the satisfaction of the Community Development Director or designee. 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) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises sha:l be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be direct line of sight from the manager's station. (2) The view area specified in subsection (5) 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 which has been designated as an area in which patrons will not be permitted. (3) No viewing room may be occupied by more than one person at any one time. (4) The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes between any m,o 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) Customers, patrons or visitors shall not be allowed to stand idly by in the vicinity of any such video booths, or from remaining 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. (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' may justify suspension or revocation of the owner and operator's license to conduct the adult-oriented establishment. (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 Bookstores and other retail establishments Theaters and cabarets Arcades Motels/Hotels Modelling studios Foot -Candles 20 5 (except during performances, at which times lighting shall be at least 1.25 foot-candles) 10 20 (in public areas) 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 prolubited 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 -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. 0) The following additional requirements shall pertain to Adult -Oriented Businesses providing live entertainment depicting Specified Anatomical Areas or involving Specified Sexual Activities, except for businesses regulated by the Alcoholic Beverage Control Commission: (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 entertainer. "Entertainer" 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 entertainers which are exclusively dedicated to the entertainers' use. (3) The Adult-oriented Business shall provide an entrancelexit for entertainers which is separate from the entrance/exit used by patrons. (4) The Adult -Oriented Business shall provide access for entertainers 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 shall provide a minimum Vw ._t A_ 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, either before, during or after performances, 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 shall only apply to physical contact on the premises of the Adult -Oriented Business. (6) Fixed rail(s) 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 pay or 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 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 «ith less thana fully opaque coverage over any part of the nipple or areola and/or covered malt: genitals in a discernibly turgid state. This provision may not be complied -Mth by applying an opaque covering simulating 'the appearance of the specified anatomical part required to be covered. (m) Adult -Oriented Businesses shall employ security guards in order to maintain the public peace and safety, based upon the; following standards: (1) Adult -Oriented Businesses featuring live entertainment shall provide at least one (1) security guard at all times while the business is open. If the occupancy limit of the premises is greater than thirty-five (35) persons, an additional security guard shall be on duty. (2) Security guards for other Adult -Oriented Businesses may be required if it is determined by the Police Chief that their presence is necessary in order to prevent any of the conduct listed in Section R208(b)(2) from occurring on the premises. (3) Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. Security guards shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of state law. No security guard required pursuant to this subsection 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. The foregoing applicable requirements of this Section shall be deemed conditions of Adult - Oriented Business Regulatory Permit approvals, and . failure to comply with every such requirement shall be grounds for revocation of the Permit issued pursuant to these regulations. SEC. R302. REGISTER AND, PER?ZT NUMBER OF EMPLOYEES. (a) Every permittee of an Adult -Oriented Business which provides live entertainment depicting specified anatomical areas or involving specified sexual activities 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 office or health officer of the City of _. SEC. R303. 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 times during which such person is on the premises of the Adult -Oriented Business. _ SEC. R304. 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 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. R401. 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 and the development and - performance standards applicable to Adult -Oriented Businesses, 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. R402. 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 SEC. R403. EMPLOYMENT OF PERSONS WITHOUT PERMITS UNLAWFUL- _. - - 000160 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 entertainment depicting specified anatomical areas or involving specified sexual activities to allow any person to perform such entertainment who is not in possession of a valid, unrevoked Adult -Oriented Business Performer Permit, SEC. R404. TRAE LMT 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 }rithin 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 speed sexual activities in an Adult -Oriented Business after such time without a permit shall constitute a violation of this chapter. SEC. R407. 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 partthereof. 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 of this ordinance is exempt from CEQA pursuant to Section 15061(b)(3) of the CEQA guidelines. SECTION 5. EFFECTIVE DATE_ This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption. SECTION 6. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in , the official newspaper of the City of , setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted. of APPENDIX "B" =Y SYNOPSIS OF RECENT ADULT USE CASES I. - PENDING LITIGATION 1. 3570 East Foothill v. City of Pasadena U.S.D.C, Central District (CV 95 -5592 -ABC) [1995 WL '?3 s 713739, amended 1996 WL 165521 and [1995 WL 774902] Nature of Action: Constitutionality of Pasadena's conditional use permit and live entertainment permit ordinances. Plaintiff Red Hots originally applied for a conditional use permit to permit the sale of alcohol as part e its "family" restaurant. Plaintiff then proposed the addition of entertainment including bikini and topless dancing. The Court issued a permanent injunction enjoining the enforcement of the City's general CUP and live entertainment ordinances as they apply to expressive First Amendment activities. (1995 WL 713739, amended " 1996 WL 16552). The Court denied the plaintiffs application for a preliminary injunction to allow for the provision of adult uses not authorized in the club's existing zone designation. (1995 WL 774902). Status: Motion for reconsideration of court's denial of the preliminary injunction under submission. Attorneys: Ben Kaufman, Deborah J. Fox of Freilich, Kaufman, Fox & Sohagi for defendant; John Weston of Weston, Sarno, Garrou & DeWitt for plaintiff. 2. Kohl v.County of San Bernardino, U.S.D.C. Central District (EDCV94-241-RT); and Roach v County of San Bernardino, U.S.D.C. Central District (EDCV94-266-RT) Nature of Action: Challenge to the County's adult use adopted in October 1991. These existing non- conforming adult businesses are also challenging the County's amortization provisions. The issue of the reasonableness of the sites is in play and as well whether you examine sites within incorporated cities located in the County or simply look to the land located in the unincorporated County. Status: Trial dates set for February 14, 1997. Law and motion and discovery issues divided into two phases: Phase I on the issues of the facial validity of the ordinance including the amortization provisions; Phase II on reasonable range of alternative sites. Attorneys: Deborah J. Fox and Dawn R. Andrews of Freilich, Kaufman, Fox & Sohagi for defendants; Roger Diamond for plaintiffs. 3. Tollis v County of San Bernardino, U.S.D.C. Central District (EDCV94-246-RT) Nature of Action: Like Kohl and Roach, above, Tollis has filed an action for declaratory and injunctive ;. relief under Title 42 U.S.C. Section 1983 seeking to prohibit the County defendants from enforcing its existing adult use provisions. The adult facility is also a non -conforming use. _ Status: Trial date set for February 14, 1997. Law and motion and discovery issues divided into two phases: Phase I on the issues of the facial challenge and amortization; Phase Il on reasonable range of alternative sites. Attorneys: Deborah J. Fox and Dawn R Andrews of Freilich, Kaufman, Fox & Sohagi for defendants; John Weston of Weston, Sarno, Garrou & DeWitt for plaintiff. 4. Elrousan v. Citv of Victorville, U.S.D.C. Central District (CV95-0226-HLH). Nature of Action: The case is challenging the constitutionality of the City's ordinance regulating' the establishment and operation of adult entertainment businesses/cabarets that involves distancing from a host of uses including mortuaries, places where .minors congregate and groceries. Partial summary judgment was recently granted in favor of plaintiff. Status: Trial on remaining issue of damages set for June, 1996. Attorneys: Warren Miller and Kenneth Heisz of Valensi, Rose & Magarm for defendant; Randall Garrou of Weston, Sarno, Garrou & DeWitt for plaintiff. City of Cathedral City v. Pink Lady Nature of Action: Civil abatement action against operator of a strip tease bar operating without a permit. Issues include sufficiency of relocation sites, res judicata, etc. Status: Motion pending for preliminary injunction. Attorneys: Best, Best & Krieger for plaintiff; Joshua Kaplan for defendant. 6. Cite of Nevmort Beach v. Nuaven Nature of Action: This case involved the City's attempts to obtain a preliminary injunction against a sexually oriented business operating in a specific plan area on property zoned for restaurant use only. The Cin obtained the preliminary injunction. After issuance of the preliminary injunction, the defendant filed t�%,o motions for issuance of writs of mandate directing the City to issue the required adult oriented business permit and lire entertainment permit. The court denied both writs finding that the City properly refused to issue the permits because the underlying zoning on the defendant's property prohibited theater uses. Status: The denial of the writs are currently on appeal. Attorneys: Jeffrey Goldfarb of Rutan & Tucker for plaintiff. 7. Mediavilla v. City of Lawndale Nature of Action: In this federal case, the plaintiff challenged the City's refusal to permit the establishment of a adult oriented motion picture arcade. The plaintiff started an adult oriented book store prior to the City's adoption of its adult oriented business zoning ordinance. However, the plaintiff never obtained the necessary building and electrical permits to modify the book store to include peep booths. The plaintiff sought a preliminary injunction to compel the City to permit the operation of the video arcade without being required to obtain any additional permits. The City cross -complained for a temporary restraining order to require the plaintiff to remove all video booths from the establishment. The court denied the plaintiffs request for the preliminary injunction and the plaintiff removed the video booths. 000163 The Lawndale ordinance precludes the subsequent reintroduction .of the video booths because the ordinance prohibits the enlargement of a legal nonconforming adult oriented business and prohibits more than two types of adult oriented businesses from being operated within a single establishment. Status: This case is in discovery. Attorneys: Jeffrey Goldfarb of Rutan & Tucker for defendant. S. Tilt' B. v. City of Newport Beach, Orange County Superior Court, 74-89-17. Nature of Action: This case involved a writ of mandate by the owner of Mermaids, challenging the City's prohibition on total nudity in sexually oriented businesses. The Court found the City's ordinance was not preempted by the State's Penal Code. However, Judge Woolly issued a writ of mandate ordering the City to rescind the ordinance on the theory that, even though Barnes authorizes such a prohibition, the Court found Morris was decided on "independent state grounds" based on Article I, Section 2, of the California Constitution. (This conclusion is contradicted by the fact that Justice Newman issued a concurring opinion in Morris, advocating that the Morris majority should have decided the case on Article 1, Section 2 grounds.) Status: Appeal pending; seeking amicus support from the League of California Cities. Attorneys: Jeffrey Goldfarb of Rutan &: Tucker for defendant; Ronald Talmo for plaintiff. 9. Manthey v. City of Santa Rosa, U.S.D.C. Northern District Nature of Action: Action to enjoin enforcement of city's ordinance, enacted pursuant to Penal Code Section 318.5. Plaintiff club features group known as "Hardbodies," which performs nude oil wrestling. Plaintiff claims exemption as a "theater," and federal Judge, in tentative ruling, agrees that statutory language is vague. However, Judge was not persuaded that California case law holds that City is preempted from defining "theater." Status: Tentative ruling announced, but no final ruling. Attorneys: Rene Chouteau, City Attorney, for defendant; Charles Bloodgood for plaintiff. 10. Gammoh etc. v. City of La Habra, U.S.D.C. Central District, SACV95-998-AHS Nature of Action: Challenge to the City's denial of an application for a juice bar featuring totally nude female dancers and the imposition of a traffic mitigation fee. Plaintiffs' request for a preliminary injunction was granted enjoining the City from enforcing the conditional use permit and traffic fees on the proposed adult use facility. The preliminary injunction allows plaintiff to proceed with remodeling but does not allow plaintiffs to open or operate any business at the location. Status: Pending with trial anticipated for fall, 1996. Attorneys: Deborah J. Fox and Dawn R Andrews of Freilich, Kaufman, Fox & Sohagi for defendant; Roger Diamond for plaintiff. 11. Gammoh v. City of Anaheim Nature of Action: In this case, plaintiff is challenging various provisions of Anaheim's adult oriented business zoning ordinance. Specifically, plaintiff challenged provisions of the ordinance which prohibit'adult 111 oriented businesses from being located in the City's target industrial zone and from being located within 100 feet of a freeway or major arterial highway. Status: Plaintiff has unsuccessfully brought one motion for a writ of mandate and two motions for preliminary injunctions. Attorneys: Jeffrey Goldfarb of Rutan & Tucker for defendant; Roger Diamond for plaintiff. 12. Johar v. Citv of Anaheim Nature of Action: PIaintiff brought an action in federal court challenging many of the same provisions of the Anaheim adult oriented business ordinance that are being challenged in Gammoh v. Citv of Anaheim. Status: Court granted City's request to abstain under the Colorado River abstention doctrine pending decision in Gammoh case. Attorneys: Jeffrey Goldfarb of Rutan & Tucker for defendant. 13. City of Cathedral City v. Club Palm Springs Nature of Action: Civil abatement action against bath house and sexual encounter establishment for operation without adult oriented business permit. Issues include validity of sexually oriented business ordinance, pre-existing nonconforming use, etc. Status: Motion for preliminary injunction under submission. Attorneys: Best, Best & Krieger for plaintiff; Roger Diamond for defendants. 14. Vicary v. Citv of Corona. Nature of Action: Action for preliminary and permanent injunction brought by owner of bar that wants to go topless. Issues include sufficient alternative sites; validity of CUP requirements, etc. Status: Motion for preliminary injunction pending additional briefing. Attorneys: Best, Best & Krieger for defendant; Roger Diamond for plaintiff II. RECENT CIVIL LITIGATION CONCLUDED 1. ' Eldorado Drive v. City of Mesquite, Nevada U.S.D.C., District of Nevada, CV -S -93 -907 -PMP, March 27, 1996 (See also prior case, 863 F.Supp 1252, D.Nev. 1994) Nature of Action: Action by adult oriented business to enjoin enforcement of City of Mesquite adult oriented business ordinance. Although Court initially issued TRO and preliminary injunction against City, after trial the Court upheld the ordinance and dissolved the preliminary injunction. Key issue was whether, under Tonanaa Press. City of Mesquite (with population of 3,500, one movie theater, one market, one post office, and one video store) had sufficient alternative sites in the industrial zoning district. In prior action, Court granted City's motion for summaryjudgment as to immunity for city officials. Attorneys: Deborah J. Fox and Dawn R Andrews for Freilich, Kaufman, Fox & Sohagi for defendants; Roger Diamond for plaintiff. 2. City of Palm Desert v Mihaison et al. (Paradise Bar) Nature of Action: Civil abatement action against operator of strip tease bar that located without permit including public nuisance violations. Status: Permanent injunction against the business. Attorneys: Best, Best & Krieger for plaintiff, Mark J. Sullivan for defendant. 000166 ENDNOTES 1 California Code of Regulations, Title 4, Article 22, Section 143.3, regulates certain specified acts related to live entertainment in licensed premises, including a requirement that entertainers exposing their breasts or buttocks to public view shall perform only upon a stage elevated 18 inches above the floor, and removed at least six (6) feet from the nearest patron. Section 143.5 provides that notwithstanding any of the provisions of Rules 143.2, 143.3, and 143.4, no on -sale licensee shall employ, use the services of, or permit upon his licensed premises, any entertainment or person so attired as to be in violation of any city or county ordinance. 2 Government Code Section 65850 appears in Article 2 of Chapter 4 of Division 1 of Title 7. It is unclear whether the scope of the exemption under SB 1863 from "this subdivision" would have been interpreted to apply to all of Chapter 4, to Article 2 only, or just to Section 65850, but in any case was a serious concern. 3 Care should be taken in drafting and implementing administrative hearing processes so that the decisions that emanate from the hearing processes will be accorded res judicata and/or collateral estoppel effect if the applicant fails to seek timely judicial review. See U. S. v. Utah (1966) 384 U.S. 394; Eilrich v. Remas (9th Cir. 1988) 839 F.2d 630; Miller v. Santa Cruz (9th Cir. 1994) 37 F.3d 1030; Briggs v. City of Rolling Hills Estates (1995) 40 Cal.AppAth 637. 4 Some cities may want to include criminal background checks on the applicants, as sustained by other circuits. On the application, the applicant would be required to provide information as to convictions within the last five years of the sexually related offenses listed in section R206(d)(5). Any such conviction would be grounds for denial of application under section R204. A recital should also be included to the effect that AOB permits shall be denied to applicants with recent criminal convictions due to evidenced lack of commitment to enforcement of prohibitions with respect to sexual offenses and due to the high incidence of recidivism with respect to sexual crimes. 5 See Mitchell v. Delaware (3rd Cir. 1993) 10 F.3d 123, 132; Sundance Saloon. Inc. v. City of San Diego (1989) 213 Cal.App.3d 807, and Star Satellite. Inc. v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074. 000167 This bill would delete the exemption for theaters, concert halls, and similar establishments. The bill would further provide that nothing in the Penal Code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a city or county, 9 that ordinance prohibits the presentation of live, nude performances at any adult or sexually oriented business, as - Y AB726 AB 726 Sexually oriented businesses: local regulation. Ll ,Y c BILL NUMBER: AB 726 INTRODUCED 02/26197 legislative body of any city or county from regulating an adult or sexually oriented business, or similar establishment in the —" INTRODUCED BY Assembly Member Baugh (Principal coauthor: Assembly Member Caldera) (Coauthors: Assembly Members Ackerman, Baldwin, Bordonaro, Bowler, Campbell, Margett, Miller, Morrissey, Morrow, Oiler, Runner, Thompson, and Woods) =: FEBRUARY 26,1997 An act to amend Sections 318.5 and 318.6 of the Penal Code, relating to adult entertainment -� LEGISLATIVE COUNSEL'S DIGEST .'a AB 726, as introduced, Baugh. Sexually oriented businesses: local regulation. Under existing law, the legislative body of any county or city may regulate, pursuant to a content neutral zoning ordinance, the time, place, and manner of operation of sexually oriented businesses, as specified. Existing law separately provides that nothing in specified provisions shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a county or city, if the ordinance directly regulates the exposure of the genitals or buttocks of or the breasts of any person who acts as a waiter, waitress, or entertainer, as specified. Existing law further provides that nothing in the Penal Code shall invalidate an ordinance of, or be construed to prohibit the `f adoption of an ordinance by, a city or county, if that ordinance relates to any live acts, demonstrations, or exhibitions occurring in public places, places open to the public, or places open to public view and involve the exposure of specified body i it parts and if the ordinance prohibits an act or acts that are not expressly authorized or prohibited by existing law. Existing law exempts from these provisions any theater, concert hall, or similar establishment which is primarily devoted to theatrical performances. _ This bill would delete the exemption for theaters, concert halls, and similar establishments. The bill would further provide that nothing in the Penal Code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a city or county, 9 that ordinance prohibits the presentation of live, nude performances at any adult or sexually oriented business, as defined, or if that ordinance prohibits any patron from directly paying or giving any gratuity to any dancer or entertainer, or prohibits any dancer or entertainer from soliciting any pay or gratuity from any patron, in any adult or sexually oriented business or similar establishment The bill would declare that its provisions shall not be interpreted to require the adoption of any ordinance, but is instead intended to be declaratory of existing law, and that it shall not be construed to preempt the legislative body of any city or county from regulating an adult or sexually oriented business, or similar establishment in the —" manner, and to the extent permitted by, the United States Constitution and the California Constitution. This bill would make findings and declarations relating to the regulation of sexually oriented businesses, as defined, and would provide that, notwithstanding any other provision of law, any city, county, or city and county may prohibit live nude performances in adult or sexually oriented businesses, consistent with the legislative body's authority to regulate these businesses to the extent permitted by the United States and California Constitutions. •7 Vote: majority. Appropriation: no. Fiscal committee: no. State -mandated local program: no. SECTION 1. (a) (1) The Legislature finds and declares that the presentation of live nude entertainment within adult or sexually oriented businesses creates undesirable secondary effects including, but not limited to, an increase in criminal activities such as prostitution and drug dealing in the vicinity of the property on which the entertainment is being provided. (2) The Legislature acknowledges that in Bames v. Glen Theatre, Inc. (1991) 501 U.S. 560, 115 L. Ed. 2d 504,1115 Ct. 2456, the United States Supreme Court upheld as constitutional a prohibition against live nude performances occurring within adult entertainment or sexually oriented businesses as a means to reduce or eliminate undesirable secondary effects. The Legislature therefore finds and declares that cities, counties, and cities and counties within California may, by ordinance, "adult i it prohibit five nude entertainment within adult or sexually oriented businesses. For purposes of this section, an or sexually oriented business" includes any establishment that regularly features live performances which are distinguished or characterized by an emphasis on the display of specified anatomical areas or specified sexual activities. _ (3) The Legislature further finds that the solicitation or payment of money or gratuities by and between patrons and �a entertainers in sexually oriented businesses is an inducement to, and often results in, disorderly conduct, including, but not limited to, lewd or dissolute conduct, acts of prostitution, or illicit dealing of controlled substances. http:ltwww.sen.ca.gov/htbirVca-html?GOPHER—ROOT2:IBILLCU - RRENT.AB.FROM070O.ABO726]CURRVER.TXT;lfbilWMgB 000168 AB726 (4) The Legislature therefore finds and declares that cities, counties, and cities and counties within California may, by ordinance, prohibit any patron from directly paying or giving any gratuity to any dancer or entertainer, or any dancer or entertainer from soliciting any pay or gratuity from any patron in any adult or sexually oriented business. (b) (1) Notwithstanding any other provision of law, any city, county, or city and county may adopt an ordinance or ordinances prohibiting the presentation of live nude performances at any adult or sexually oriented business. This section shall not be construed to require the adoption of any ordinance, but is instead intended to be declaratory of existing law authorizing cities and counties to adopt these ordinances. (2) This section shall not be construed to preempt the legislative body of any city or county from regulating adult or sexually oriented businesses or similar establishments in the manner, and to the extent permitted by the United States Constitution and the California Constitution. (c) For purposes of this section, an "adult or sexually oriented business" includes any establishment that regularly features live performances which are distinguished or characterized by an emphasis on the exposure of the genitals or buttocks of any person or the breasts of any female person, or sexual activities that involve the exposure of the genitals or buttocks of any person or the breasts of any female person. SEC. 2. Section 318.5 of the Penal Code is amended to read: 318.5. Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a county or city, if that ordinance directly regulates the exposure of the genitals or buttocks of any person, or the breasts of any female person , who acts as a waiter, waitress, or entertainer, whether or not the owner of the establishment in which the activity is performed employs or pays any compensation to 9,jeh-that person to perform a dehthe activity, in an ----3aSr -R—.=reel4s s af of-h–eskabli0hrn its -- - --- plinth}+ dPyetea -e the a=• per adult or sexually oriented business. For purposes of this section, an "adult or sexually oriented business"includes any establishment that regularly features live performances which are distinguished or characterized by an emphasis on the exposure of the genitals or buttocks of any person, or the breasts of any female person, or specified sexual activities that involve the exposure of the genitals or buttocks of any person, or the breasts of any female person. This section shall be known and may be cited as the "Quimby -Walsh Act." SEC. 3. Section 318.6 of the Penal Code is amended to read: 318.6. (a) Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a city or county, if uehthat ordinance relates be any live acts, demonstrations, or exhibitions Y blle =occurring within adult or sexually oriented businesses and involve the exposure of the e-eertgenitals or buttocks of any participant or the breasts of any female participant, and if -that ordinance prohibits an act or acts which are not expressly authorized or prohibited by this code. (b) Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a city orcounty, if that ordinance prohibits the presentation of live nude performances at any adult or sexually oriented business located within the jurisdiction of the local agency. This section shall not be interpreted to require the adoption of any ordinance, but is instead intended to be declaratory of existing law authorizing the adoption of these ordinances by cities and counties. (c) Nothing in this code shall invalidate an ordinance of, or be construed to prohibit the adoption of an ordinance by, a city or county, if that ordinance prohibits any patron from directly paying or giving any gratuity to any dancer or entertainer, or prohibits any dancer or entertainer from soliciting any pay or gratuity from any patron, in any adult or sexually oriented business or similar establishment. (d) For purposes of this section, an adult or sexually oriented business" includes any establishment that regularly features live performances which are distinguished or characterized by an emphasis on the exposure of the genitals or buttocks of any person, or the breasts of any female person or sexual activities that involve the exposure of the genitals or buttocks of any person, or the breasts of any female person. (e) This section shall not be construed to preempt the legislative body of any city or county from regulating an adult or sexually oriented business , or similar establishment in the manner and to the extent permitted by the United States Constitution and the California Constitution. http:ltw w.sen.ca.govlhtbinlca-html?GOPHER, ROOT2:[BILLCURRENT.AB.FROM0700.AB0726]CURRVER.TXT;1lbilVAM2B 000169 .�` �' �.. - -_ ��. � �,. -� '�'- �': '�'`, "_�- ��� �Yy ey�j �1 �Y 1� i= �.2 y; E CITY OF DIAMOND BAR INTEROFFICE MEMORANDUM TO: CHAIRMAN AND PLANNING COMMISSION FROM: CATHERINE: JOHNSON, SENIOR PLANNER CI SUBJECT: ADULT ORIENTED BUSINESS REGULATIONS DATE: NOVEMBER 4, 1997 INTRODUCTION At its October 14, 1997 meeting, the Planning Commission concurred that the adult oriented business regulations within the new Code should be the most restrictive permitted by law. Since that time staff Has done further research on this issue and has drafted revised regulations which are currently being reviewed by the City Attorney. Summarized below are the results of staff's additional research and a description of the revised regulations. Also included are the City's current regulations and L.A. County's business license regulations for adult businesses. In researching this. issue staff, contacted John Cavanaugh, a local attorney with expertise in the area of adult business regulations and the co-author of a model ordinance which was presented at last years League of California Cities Planners Institute. The model ordinance is attached for your information. Additionally, staff contacted several other local cities and obtained their regulations. A summary of the primary features of these regulations is included in this report. CONSTITUTIONAL REQUIREMENTS Like sign regulations, adult businesses are protected under the First Amendment. The negative secondary effects associated with adult oriented businesses 0.e. noise, congestion, deteriorating property values, etc.) have been recognized by the United States Supreme Court as a legitimate basis to regulate adult uses provided that the regulations include basic constitutional safeguards for activities protected by the First Amendment. This means that the regulations must be "content neutral" i.e. the secondary impacts may be regulated but the' activity itself must be permitted as an expression of free speech. In determining the constitutionality of adult oriented business regulations, the Supreme Court uses the same four-part test applied to sign regulations: the regulations must concern lawful activity; they must assert a substantial government interest; they must directly advance the government interest asserted; and they can be no more extensive than necessary to serve that interest. CURRENT CITY STANDARDS The City's current Planning and Zoning Code permits adult oriented businesses within the C-3, (Unlimited Commercial), the M-1.5 (Restricted Heavy Manufacturing), M-2 (Heavy Manufacturing) and M-4 (Unlimited Manufacturing) zones subject to approval of a Conditional Use Permit and provided it is not within a 1,000 foot radius of any other adult business. Additionally, the following findings must be made: 1. The requested use at the proposed location will not adversely affect the use of a church, temple or other place used exclusively for religious worship, school, park, playground or similar use within a 500 foot radius. 2. The requested use at the proposed location is sufficiently buffered in relation to residentially zoned areas within the immediate vicinity so as not to adversely affect said areas; and 3. The exterior appearance of the structure will not be inconsistent with the external appearance of commercial structures already constructed or under construction within the immediate neighborhood so as to cause blight, deterioration, or substantially diminish or impair property values within the neighborhood. F U BUSINESS LICENSE PROCESSING When the City incorporated in 1989, the L.A. County Municipal Code was adopted and became the City of Diamond Bar Municipal Code. Business licenses are issued through the County of Los Angeles for specific types of businesses within the City and subject to the Municipal Code provisions adopted by the City at the time of incorporation. Among the uses requiring business licenses are adult bookstores, adult entertainment, adult picture arcades and adult theaters. Applicants for a business license are required to file an application with the County and a public hearing is required. Business licenses are issued for a period not exceeding one year and the uses listed above are subject to a renewal hearing. Entertainment uses must also obtain an entertainment license which is subject to application requirements and a public hearing. In addition to the provisions that the City chooses to adopt for adult businesses, these uses will also continue to be subject to the County business licensing requirements. ADULT-ORIENTED REGULATIONS FROM OTHER CITIES City of Walnut (4/95) Adult businesses are permitted in the M-1 zone subject to approval of a Conditional Use Permit. Separation requirements: 500' from residentially zoned areas, 1,000' from any other adult entertainment business, and 1,000' from any church, public or private school, college, park, library or public playground, buildings and facilities owned and maintained by any public entity for public use or any non-commercial establishment operated by a bona fide religious organization, or any establishment likely to be used primarily by minors. City of Brea (7/93) Adult Entertainment Zoning Permit required, subject to Director approval within 30 days after receipt of complete application. Permitted within the City's Industrial/Manufacturing zones (M -P, M-1, M-2). Separation requirements: 1,000 feet from any other adult entertainment establishment; 1,000 feet from any school, park, hospital, publicly operated facility, existing residential dwelling, or residentially zoned property. 3 City of Rancho Cucamonga (3/96) Permitted within the Industrial Area Specific Plan, zoning district. An Adult Entertainment Zoning Permit is required, subject to approval by the City Planner. Separation requirements: 1,500' from any other adult entertainment establishment; 1,500' from any existing residential dwelling, residentially zoned property, church , or similar place of worship, school or daycare facility, park or playground, recreational facility, hospital, public buildings (i.e. City Hall, County Offices, courthouses, libraries, etc.) and 1,500 feet from the right-of-way of specific roadways and the 1-15 Fwy. City of San Juan Capistrano (draft 9/97) Permitted within the CM (Commercial Manufacturing) and MP (Industrial Park) zoning districts. An Adult -Oriented Business Permit, Adult Oriented Business Performer Permit is required subject to approval by the Planning Director. Separation requirements: 300' from any residential zone or use unless the proposed location of the Adult - Oriented Business is physically separated from the residential zone or use by a freeway or storm drainage channels; 300' from any lot upon which there is properly located a public park, school (public or private) or religious institution, unless the proposed location is physically separated as for residential uses; 1,000' from any other adult oriented business. Temple City (rev. 6/94) Adult businesses are permitted by right within all zones except residential. The separation requirements are applied to all zones within the City except specified portions of the M-1 zoning districts. Separation requirements: 600' feet from a public or private school, 300' from a residentially zoned property, 300' from premises selling alcoholic beverages and 1,000' from another adult oriented business. City of Arcadia (7/88) Permitted within the M-1 and M-2 zones, subject to a Conditional Use Permit. Separation requirements: 100' from another adult business; 500' from any commercial zone; and 750' from any residential zone. City of Alhambra (6/89) Permitted only within the Commercial Planned Development (CPD) zone subject to a Conditional Use Permit. Separation requirements: 500' from any other adult business; 250' from any R-1, R-2 or R-3 zone; 500' from any educational institution or church; 500' from businesses where there is on-site alcohol consumption. 0 City of Westminster (8/97) A Permit is required subject to public hearing before the Planning Commission. Separation requirements: 200' from another adult use, from any residential zone and from the real property boundaries of a church, temple or other place of religious worship, school, park, playground, or mobile home park. MODEL ORDINANCE As part of our research, staff has reviewed a "model ordinance" created by a task force formed under the auspices of the City Attorney's Department of the League of California Cities, specifically created to address this issue. The City of San Juan Capistrano has recently proposed an adult oriented business ordinance based on this model. A copy of the draft ordinance is attached for your review. The model ordinance was presented to the Planners Institute at its March 1997 conference. Along with th.e model ordinance a report was also provided discussing its purpose and outlining recent case law and legislative developments regarding adult businesses. In the following paragraphs a summary of this information is provided, as well as a description of the primary features of the model ordinance. In order to be valid, zoning regulations must provide a genuine opportunity for adult oriented businesses to establish and operate. The determination of validity is a function of two interrelated issues, the quality of sites and the quantity of sites. Based on case law, zoning regulations can't be so restrictive so as to result in a "de facto" prohibition of all adult businesses. The zoning district and proximity designations must be determined on a case-by- case basis by each City adopting regulations. The Courts have not provided any set formula as to how many locations must be available for adult oriented business in order for the regulations to be constitutional. At least two courts have held that if more sites are available than the number of businesses which demand them, the number of sites is not unreasonable. The quality of the site is the second issue. The Courts have stated "property is not potentially available when it is unreasonable to 5 believe that it would ever become available to any commercial enterprise" Sites located in manufacturing and industrial zones must be "reasonably accessible to the general public, must have proper infrastructure such as sidewalks, roads, and lighting" and must be generally suitable for some commercial enterprise, whether or not the site suits the particular needs of an adult business. However, locational criteria alone may not adequately protect communities from the negative secondary side effects associated with adult businesses. Because of this, local governments can enact zoning regulations that are applicable only to adult business uses. Licensing requirements applicable only to such uses are also valid. Licensing and operational regulations facilitate the enforcement of locational and distancing requirements under the zoning regulations. They also facilitate enforcement of applicable criminal laws, such as those against prostitution, obscenity, the employment of minors as nude dancers, as well State Labor Code regulations. Finally, they mitigate the negative secondary effects cites by the courts in various cases. According to its authors, the purpose of the model ordinance is to "balance the interests of communities to control the adverse secondary effects of adult business uses and the constitutional rights of the proprietors, employees, and customers of adult oriented businesses." The primary features of the model ordinance are: identification of the zone or zones in which adult oriented businesses are allowed; separation requirements from "sensitive" uses; provisions for adult oriented business permits and performer permits; .and development and performance standards. In the model ordinance, adult oriented businesses are restricted to one or more designated zoning district and are further prohibited from locating in close proximity to sensitive uses such as parks, schools, churches, and residences as well as other adult businesses. One of the most important features of the model ordinance is the establishment of permit requirements for the owners and operators of adult oriented businesses and for their performers. This process allows staff to insure that the provisions of the ordinance, including the proper zoning, separation requirements and other standards are met prior to issuance of a permit. M The model ordinance also contains development and performance standards. These standards are specifically designed to mitigate the potential secondary negative effects of adult businesses and in no way prohibits the conduct of these activities. Compliance with these standards must be demonstrated prior to issuance of an adult-oriented business permit. Failure to comply can result in the license's revocation. PROPOSED CITY STANDARDS As noted above, the current Planning and Zoning Code permits adult businesses within the C:-3 and Industrial zoning designations subject to approval of a Conditional Use Permit. The hearing draft Development Code proposes limiting adult businesses to the Light Industrial (1) General Plan land use designation. These areas are located north of the 60 Freeway, generally adjacent to the City's northwest boundary. This area is separated from the majority of the City's residential uses, schools, churches, daycare centers, parks and playgrounds. Further, the proximity of the freeway provides a boundary for the industrial areas, separating them physically and by locational identity, from the bulk of the City east of the 57 Freeway. Of the City's twelve public school sites, the Walnut Valley Elementary School, located at the southeast corner of Lemon Avenue and Lycoming Street is the only school located in this area. The next closest school is the South Pointe Middle School, located a little less than 3/4 of a mile to the south of this area on Larkstone Drive. The next closest school is Diamond Bar High School which is 1.5 miles to the south on (Pathfinder Road. The closest park is Starshine Park, which is located approximately 1 mile to the south on Starshine Road. There is one daycare center in the general area, located at the southwest corner of Brea Canyon Road and Lycoming Street. As can be seen frorn the sampling of other local cities, the separation requirements from sensitive uses varies from city to city, with some cities proposing distances as great as 1,500' and others as little as 200.' Determining appropriate distance requirements is dependent on many factors including the size of lots, the density of development and the existing land use patterns. 7 In many cities, industrially zoned properties are often on the outskirts of town, away from residential areas. Because of the way that Diamond Bar developed prior to incorporation, there are single and multi -family residential uses adjacent to industrial uses. This has made providing adequate distances, while providing an adequate number of viable sites for adult businesses a challenge. When assessing the number of viable sites for adult businesses, staff measured distance of 300' and 500' from the nearest residential uses and schools. At a 'distance of 300' it was found that there were approximately 28 acres of available property within the industrially designated area. When measuring a distance of 500' from these uses there were found to be approximately 13 acres. These sites are generally composed of individual units. within industrial business park type buildings. Previously, staff recommended a separation of 300' from residential uses and schools to insure a sufficient number of sites. Since making this recommendation, staff has done further research. Based on this research and as noted above, it was . found that it is the current legal opinion that the number of available sites must exceed the number of business which demand them, and that these sites must be reasonably accessible to the general public. Since there has been virtually no demand to locate adult businesses within the City very few sites are required in order to exceed this demand. Further, City's industrial areas generally have the necessary infrastructure and roadways in place. RECOMMENDATION Staff recommends increasing the separation requirements to a minimum of 500' feet from all schools and daycare centers, single and multi -family residences, parks, playgrounds and churches or other places of worship. Additionally, 500' will be required between adult businesses. Further, staff is proposing to significantly expand the proposed Chapter regulating adult business to include many of the features of the model ordnance and a similar ordinance that was created the City Attorney (attached). These expanded provisions will include requirements for approval of an Adult Oriented . Business Permit and procedures and requirements for applications, investigation, design r] standards and performance standards. This chapter has been drafted and is currently being ireviewed by the City attorney. It is recommended that the Planning Commission review and discuss the information contained within the staff report and the attached materials and direct staff as appropriate. Attachments: Model Ordinance created for the League of California Cities Model Ordinance created by Richards, Watson and Gershon Draft Ordinance, City of San Juan Capistrano CJ/B:PCME1022 RICHARDS, WATSON AND GERSHONORDINANCENO. AN ORDINANCE OF THE CITY OF , CALIFORNIA REGARDING THE OPERATION OF SEXUALLY ORIENTED BUSINESSES AND AMENDING THE MUNICIPAL CODE THE CITY COUNCIL OF THE CITY OF DOES ORDAIN AS FOLLOWS: SECTION 1. Findings and Intent. A. The City Council takes legislative notice of the existence, content and findings of the following studies concerning the adverse secondary effects of sexually oriented businesses: New York, New York (1994); Garden Grove, California (1991); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (11380); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977). Copies of these studies are hereby made a part of the record of the consideration of this Ordinance and are available for inspection in the office of the Director of Community Development. B. The City Council also takes legislative notice of the facts set forth in numerous reported court opinions regarding the adverse secondary effects of sexually oriented businesses. See, e.g. California v. La Rue, 409 U.S. 109 (1972) (describing on -premises sexual contacts between sexually oriented business customers and entertainers, as well as the on -premises occurrence of prostitution) . C. The City Council finds that these studies and court opinions are, in whole or in part, relevant to the problems addressed by the City of in enacting this Ordinance. The City Council further finds that these studies and court opinions provide convincing evidence that sexually oriented business generate adverse secondary effects. These adverse secondary effects include, but are not limited to: depreciation of property values; increased vacancy rates in residential and commercial areas; increased criminal activity; increased litter, noise, and vandalism; and interference with the enjoyment of residential property in the vicinity of such businesses. D. In accordance with _Renton v. Playtime Theatres Inc., 475 U.S. 41 (1986), the City Council has relied on these studies and court opinions, in whole or in part, 970414 11158-00002 trb 1390529.db in enacting this Ordinance. The purpose of this Ordinance is to regulate sexually oriented businesses in a manner which eliminates or mitigates the adverse secondary effects on the community noted in Paragraph "C" above. E. The City Council finds that security guards employed by sexually oriented businesses tend to be minimally trained. The City Council further finds that such security guards often assist the management of such businesses in concealing unlawful activity on the premises.' F. The City Council recognizes that non -obscene sexually oriented materials are constitutionally protected. In enacting this Ordinance, the City Council does not intend to restrict or deny access by adults to such materials, nor to deny the distributors and exhibitors of such materials access to their targeted market. G. This Ordinance does not condone or legitimize any unlawful sexual activities or the distribution of obscene matter. The City Council recognizes that state law prohibits certain sexual activities and the distribution of obscene matter. H. The City of has a population of approximately 21,000 persons, and a land area of 22.9 square miles. (number) sexually oriented businesses currently exist within the City. I. The City Council finds that the zone limitations and separation requirements contained in this Ordinance provide a reasonable opportunity for sexually oriented businesses to operate within the City of In the establishment of these criteria, the City Council considered their effects on the number and suitability of locations for sexually oriented businesses. The City Council finds that these criteria allow for approximately (number) sites within the City of that are physically suitable for the establishment of new sexually oriented businesses. J. In enacting the nudity regulations contained in this Ordinance, the City Council declares that the regulations are licensing provisions and do not create or regulate a criminal offense. The City has not provided a criminal penalty for violations of these regulations. The City adopts the regulations only as a condition of issuance and maintenance of a sexually oriented business permit. Violation of the regulations shall not be grounds for criminal prosecution. 970414 11158-00002 trb 1390S29.db - 2 - SECTION 2. Code Amendment. Chapter 19.43 (Location of Adult Businesses) of Title 19 (Zoning) of the Municipal Code is hereby amended to read as follows: "Chapter 19.43 Sexually Oriented Businesses ARTICLE I. PURPOSE AND DEFINITIONS 19.43.010 Purpose. The purpose of this chapter is to prevent community -wide adverse secondary effects which can be brought about by: (i) the concentration of sexually oriented businesses; (ii) the close proximity of sexually oriented businesses to incompatible uses such as schools for minors, religious institutions, parks and residential uses; and (iii) the unregulated operation of sexually oriented businesses. These adverse secondary effects include, but are not limited to: depreciation of property values; increased vacancy rates in residential and commercial areas; increased criminal activity; increased litter, noise, and vandalism; and interference with the enjoyment of residential property in the vicinity of such businesses. 19.43.020 Definitions. For the purpose of this chapter, unless it is plainly evident from the context that a different meaning is intended, the following definitions shall apply: A. Sexually oriented business. "Sexually oriented business" means any of the following: 1. Sexually oriented arcade. A "sexually oriented arcade" is an establishment where, for any form of consideration, as a regular and.substantial course of conduct 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 that are characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas. 2. Sexually oriented bookstore, sexually oriented novelty store, sexually oriented video store. A "sexually oriented bookstore," "sexually oriented novelty store," or "sexually oriented video store," is an establishment which as a regular and substantial course of conduct offers for sale, rent, or viewing for any form of consideration either sexually oriented material, sexually oriented merchandise or both. 970414 11158-00002 trb 1390529.CW - 3 - 3. Sexually oriented cabaret. A "sexually oriented cabaret" is an establishment which serves food or beverages and which, for any form of consideration, as a regular and substantial course of conduct presents live performances that either: (i) are characterized by specified sexual activities; or (ii) feature any semi-nude person. 4. Sexually oriented hotel/motel. A "sexually oriented hotel/motel" is a hotel, motel or similar establishment offering public accommodations for any form of consideration which either: a. (i) Provides patrons with closed-circuit television transmissions, films, motion pictures, videos, slides or other photographic or electronic reproductions that are characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas; r_nd (ii) advertises the availability of such material by means of a sign visible from the public right-of-way, or by means of any off -premises advertising including but not limited to newspapers, magazines, pamphlets, leaflets, radio or television. b. Rents, leases or lets any single guest room for less than any ten (10) hour period. C. Rents, leases or lets any single guest room more than twice in any twenty-four (24) hour period; d. Allows a tenant or occupant to sub -rent a guest room for a time period less than ten (10) hours. 5. Sexually oriented motion picture theater. An "sexually oriented motion picture theater" is an establishment which, for any form of consideration, as a regular and substantial course of conduct offers to show films, computer- generated images, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas. 6. Sexually oriented theater. A "sexually oriented theater" is an establishment which, for any form of consideration, as a regular and substantial course of conduct presents live performances that either: (i) are characterized by specified sexual activities; or (ii) feature any semi-nude person. 7. Modeling studio. A "modeling studio" is an establishment which provides, for any form of consideration, semi-nude figure models or figure models who expose specified anatomical areas for the purpose of observation, sketching, photography, painting, sculpting or other depiction by persons paying such consideration. This definition shall not include the following: (i) schools maintained pursuant to standards set by 970414 11158-00002 trb 1390529.db — 4 — the State Board of Education; and (ii) schools maintained by an individual artist or group of artists, and which do not provide, permit, or make available specified sexual activities. 8. Sexual encounter center. A "sexual encounter center" is a business, agency or person that, for any consideration or gratuity, provides a place where three or more persons, not all members of the same family, may congregate, assemble or associate for the purpose of engaging in specified sexual activities or exposing specified anatomical areas. 9. Any establishment which, for any form of consideration, as a regular and substantial portion of business offers to its patrons products, merchandise, services or entertainment that are distinguished or characterized by an emphasis on specified sexual activities or the exposure of spAcified anatomical areas. B. Sexually oriented material. "Sexually oriented material" means any book, periodical, magazine, photograph, drawing, sculpture, motion -picture film, videotape recording, or other visual representation, which is characterized by specified sexual activities or the exposure of specified anatomical areas. C. Sexually oriented merchandise. "Sexually oriented merchandise" means sexually oriented implements or paraphernalia, such as, but not limited to: dildos; auto sucks; sexually oriented vibrators; edible underwear; benwa balls; inflatable orifices; anatomical balloons with orifices; simulated vaginas and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sadomasochistic activity. D. Director. "Director" means the Director of the Community Development of the City of or his or her designee. E. Characterized. by an emphasis upon. "Characterized by an emphasis upon" means the dominant or essential theme of the object described by such phrase. F. Entertainer. "Entertainer" means a person who, for any form of consideration, performs at a sexually oriented business. Such persons shall constitute "entertainers" regardless of their legal relationship (e.g., employee, owner or independent contractor) with the sexually oriented business. G. Owner. "Owner" means the following: (i) the sole proprietor of a sexually oriented business; (ii) any general partner of a partnership which owns and operates a sexually oriented business; (iii) the owner of a controlling interest in a corporation which owns and operates a sexually oriented business; and (iv) the person designated by the officers of a corporation 970414 11158-00002 trb 1390529.db - 5 - to be the permit holder for a sexually oriented business owned and operated by the corporation. H. Park. "Park" means a park, playground, swimming pool, golf course or athletic field within the City which is under the control, operation or management of the City or other public agency. I. Peace officer. "Peace officer" shall have the meaning set forth in the California Penal Code. J. Perform at a sexually oriented business. "Perform at a sexually oriented business" means to engage in or participate in any.live performance at a sexually oriented business that either: (i) is characterized by an emphasis upon specified sexual activities; or (ii) features any semi-nude person. K. Permittee. "Permittee" means the following: (i) for the purpose of Article II of this chapter, any person who has been issued a sexually oriented business permit; (ii) for the purpose of Article III of this chapter, any person who has been issued a sexually oriented business entertainer permit; and (iii) for the purpose of Articles IV -VI of this chapter, any person who has been issued a sexually oriented business permit or a sexually oriented business entertainer permit. L. Person. "Person" means any individual, partnership, copartnership, firm, association, joint-stock company, corporation, or combination of the above in whatever form or character. M. Regular and substantial course of conduct and regular and substantial portion of business. "Regular and substantial course of conduct" and "regular and substantial portion of business" means that any of the following conditions exist: 1. At least twenty percent (20%) of the stock -in - trade is devoted to sexually oriented material, sexually oriented merchandise, or both; provided, however, that this criteria shall not apply to mail order businesses or wholesale businesses with no patrons on the premises. 2. At least twenty percent (20%) of the total display area is devoted to sexually oriented material, sexually oriented merchandise, or both; provided, however, that this criteria shall not apply to mail order businesses or wholesale businesses with no patrons on the premises. 3. The business presents any type of entertainment, live or otherwise, characterized by an emphasis on specified sexual activities or featuring any semi-nude person on any four (4) or more separate days within any thirty (30) day period. 970414 11158-00002 trb 1390529.ft - 6 - 4. At least twenty percent (20t) of the gross receipts of the business are derived from the sale, trade, rental, display or presentation of services, products, materials or entertainment which is characterized by an emphasis on specified sexual activities or the exposure of specified anatomical areas. N. Religious institution. "Religious institution" means a structure which is used primarily for religious worship and related religious activities. O. School. "School" means: (i) any child- or day-care facility; and (ii) any institution of learning for minors, whether public or private, offering instruction in the 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. P. Semi-nude. "Semi-nude" means a state of dress in which clothing covers no more than the genitals, pubic region, buttocks, areola and nipple 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 the following: 1. Less than completely and opaquely covered human (i) genitals or pubic region; (ii) buttocks; 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; 3. Any device, costume or covering that simulates any of the body parts included in subparagraphs (1) or (2) above. R. Specified Sexual Activities. "Specified sexual activities" means the following, whether performed directly or indirectly through clothing or other covering: 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; 970414 11158-00002 trb 1390529.db - 7 - 4. Excretory functions as part of, or in connection with, any of the other activities described in subparagraphs (1) through (3) of this paragraph. S. Substantially enlarged. ',Substantially enlarged" means the increase in floor area occupied by a sexually oriented business by more than ten percent (10%) of its floor area as it existed at the time a sexually oriented business permit was issued for the business. ARTICLE II. SEXUALLY ORIENTED BUSINESS PERMIT 19.43.030 Sexually oriented business permit. A. Permit required. It is unlawful for any person to operate, engage in, conduct or carry on any sexually oriented business unless the owner of such business first obtains frDm the Director, and continues to maintain in full force and effect, a sexually oriented business permit for such business. B. Persons eligible. The owner of a proposed sexually oriented business shall be the only person eligible to obtain a sexually oriented business permit for such business. The owner shall not be eligible to obtain a sexually oriented business permit unless the owner is at least eighteen (18) years of age. C. Application requirements. The following shall be submitted to the Director at the time of application for a sexually oriented business permit: 1. A completed application form signed by: (i) the applicant; and (ii) either the record owner of the property or the lessor of the premises (if the business premises are leased to the applicant business) where the sexually oriented business is to be conducted. 2. The applicant's fingerprints on a form provided by the Los Angeles County Sheriff's Department, and a color photograph clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant. 3. A letter of justification which describes the proposed sexually oriented business and how it will satisfy the requirements of this chapter. 4. - A site plan designating the building and/or unit proposed for the sexually oriented business. The site plan shall include a dimensional interior floor plan which depicts how the business will comply with the requirements of this chapter. The site plan shall also include a diagram of the off-street parking areas required by Chapter 19.50 of the Municipal Code. 5. The names of all owners, employees, independent contractors, and other persons who will perform at the sexually 970414 11158-00002 trb 1390529.db - 8 - • oriented business and who are required by this chapter to obtain a sexually oriented business entertainer permit. 6. A statement signed by the applicant certifying under penalty of perjury that all of the information submitted in connection with the application is true and correct to the best of the applicant's information and belief. 7. A nonrefundable application fee in an amount set by resolution of the City Council. 19.43.040 Approval or denial of permit. The Director shall., within twenty (20) City business days of the filing of a complete application, approve and issue the sexually oriented business permit if the requirements of this chapter have been met; otherwise the permit shall be denied. Notice of the approval or denial of the permit shall be given to the applicant in writing by first class mail, postage prepaid, deposited in the course of transmission with the United States Postal Service within three (3) City business days of the date of such decision. If the application is denied, the Director shall attach to the notice a statement of the reasons for the denial. The times set forth in this section shall not be extended except upon the written consent of the applicant. Any interested person may appeal the decision of the Director to the City Council in accordance with Article V of this chapter. 19.43.050 Nontransferable. A. No person shall operate a sexually oriented business under the authority of a sexually oriented business permit at any place other than the address of the sexually oriented business stated in the application for the permit. B. No sexually oriented business permit issued pursuant to this chapter shall be transferrable. C. Any attempt to transfer a sexually oriented business permit is hereby declared invalid and the permit shall automatically become void effective the date of such attempted transfer. 19.43.060 Location criteria. A. A sexually oriented business may be located in (permissible districts)_, provided such business complies with all of the following requirements: 1. The sexually oriented business is not within (number) feet of any other sexually oriented business located within or outside of the City; and 970414 11158-00002 trb 1390529.db - 9 - 2. The sexually oriented business is not within (number) feet of any residential use located within or outside of the City; and 3. The sexually oriented business is not within (number) feet of any park, religious institution or school located within or outside of the City. B. The distances set forth above shall be measured as a straight line from the primary entrance of the sexually oriented business to the property line of the property so used without regard to intervening structures. 19.43.070 Design standards. A. No sexually oriented business shall be located in any temporary or portable structure. B. Trash dumpsters shall be enclosed by a screening enclosure so as not to be accessible to the public. C. No landscaping shall exceed thirty inches (3011) in height, except trees with foliage not less than six feet (61) above the ground. D. All off-street parking areas and premise entries of the sexually oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one (1) footcandle of light on parking surfaces and walkways. The lighting shall be shown on the site plan required by Section 19.43.030(0)(4) of this chapter. E. The premises within which the sexually oriented business is located shall provide sufficient sound -absorbing insulation so that noise generated inside said premises shall not be audible anywhere on adjacent property, public rights-of-way or within any separate unit within the same building. F. The building entrance to the sexually 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. G. All indoor areas of the sexually oriented business within which patrons are permitted, except restrooms, shall be open to view by the management at all times. H. All areas of the sexually oriented business shall be illuminated at a minimum of the following footcandles, minimally maintained and evenly distributed at ground level: Area 970414 11158-00002 trb 1390529.db - 10 - Footcandles Bookstores, Novelty Stores Video Stores Theaters and cabarets Arcades Motels/Hotels Modeling studios 20 5 (except during performances, at which times lighting shall be at least 1.25 foot- candles) 10 20 (in public areas) 20 I. The sexually oriented business shall provide and maintain separate restroom facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the restroom(s) for females, and female patrons and employees shall be prohibited from using the restroom(s) for males, except to carry out duties of repair, maintenance and cleaning of the restroom facilities. The restrooms shall be free from sexually oriented material and sexually oriented merchandise. Restrooms 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 a sexually oriented business which: (i) is not required to and does not provide restroom facilities to patrons or the general public; and (ii) deals exclusively with sale or rental of sexually oriented material or sexually oriented merchandise which is not used or consumed on the premises. J. Adult arcades shall comply with the following additional requirements: 1. The interior of the premises shall be configured in such a manner that from a manager's station there is an unobstructed view of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. If the premises has two or more designated manager's stations, then the interior shall. be configured in such a manner that from at least one of the manager's stations there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose, excluding restrooms. The view required in this subparagraph must be direct line of sight from the designated manager's station. 2. The view specified in subparagraph (1) shall at all times remain unobstructed by doors, walls, merchandise, display racks, or other..materials. 3. The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times. The 970414 11158-00002 trb 1390529.db - 1 1 walls or partitions between viewing rooms or booths shall not contain holes between any two such rooms or booths such as would allow either: (i) viewing from one room or booth into another; or (ii) physical contact of any kind between the occupants of.any two such rooms or booths. K. Adult cabarets and adult theaters, except for businesses regulated by the Alcoholic Beverage Control Commission, shall comply with the following additional requirements: 1. Separate dressing room facilities for entertainers, exclusively dedicated to the entertainers' use, shall be provided. 2. An entrance/exit for entertainers, separate from the entrance,'exit used by patrons, shall be provided. 3. Access between the stage and the entertainers' dressing room facilities, completely separated from the patrons, shall be provided. If such separate access is not physically feasible, a minimum three foot (31) wide walk aisle between the entertainers' dressing room facilities and the stage shall be provided. Such walk aisle shall contain a railing, fence or other barrier separating the patrons and the entertainers. Such railing, fence or other barrier shall be at least thirty inches (3011) in height and shall be sufficient to prevent any physical contact between patrons and entertainers. 19.43.080 Performance standards. A. No sexually oriented business shall be operated in a manner that permits the observation, from public rights-of-way or locations outside the establishment, of either: (i) sexually oriented material; (ii) sexually oriented merchandise; (iii) specified sexual activities; or (iv) any semi-nude person. This provision shall apply to any display, decoration, sign, show window or other opening. B. Exterior doors and windows of the sexually oriented business shall not be propped or kept open at any time while the business is open. C. Exterior windows of the sexually oriented business shall be covered with opaque covering at all times. D. Patrons shall not be permitted access to any area of the sexually oriented business which has been designated as an area in which patrons will not be permitted. E. No person under the age of eighteen (18) years shall be permitted within the sexually oriented business at any time. 970414 11158-00002 trb 1390529.db - 12 - • F. The sexually oriented business shall maintain a security system that visually monitors and records all parking surfaces serving the business. G. Security guards shall be employed in order to maintain the public peace and safety, based upon the following standards. 1. One (1) security guard shall be on duty at all times while the business is open; provided, however, that an additional security guard shall be on duty if the occupancy limit of the premises is greater than thirty-five (35) persons. 2. The security guard(s) shall be: (i) certified by the State Commission on Peace Officer Standards and Training; (ii) currently employed, off-duty peace officer(s); and (iii) uniformed in such a manner so as to be readily identifiable as a security guard by the public. 3. The security guard(s) shall be charged with preventing violations of law, enforcing patron compliance with the requirements of this chapter, and with notifying the Los Angeles County Sheriff's Department of any violations of law observed. 4. No security guard required pursuant to this paragraph 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. H. No sexually oriented business shall operate between the hours of twelve (12) midnight and eight (8) a.m. on any day, except that this provision does not apply to businesses also regulated by the California Department of Alcoholic Beverage Control. I. No owner or other person with managerial control over a sexually oriented business shall permit any person on the premises of the sexually oriented business to engage in a live showing of specified anatomical -areas. J. .Adult arcades shall comply with the following additional requirements: 1. No viewing room or video booth may be occupied by more than one person at any one time. 2. At least one employee shall be on -duty and stationed at each manager's station at all times that a patron is present inside the premises. 3. Customers, patrons or visitors shall not be allowed to loiter in either: (i) the vicinity of viewing rooms or booths; or (ii) the common area of the business. 970414 11158-00002 trb 1390529.db - 13 - 4. Signs prohibiting loitering shall be posted in prominent places in and near viewing rooms and booths. 5. The floors, seats, walls and other interior portions of viewing rooms and booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen or saliva in any viewing rooms or booths shall be evidence of improper maintenance and inadequate sanitary controls. K. Adult cabarets and adult theaters, except for businesses regulated by the Alcoholic Beverage Control Commission, shall comply with the following additional requirements: 1. No entertainer shall perform except upon a stage which is both: (i) at least eighteen inches (1811) above the level of the floor; and (ii) separated by a distance of at least ten feet (101) from the nearest area occupied by patrons. 2. No patron shall be permitted within ten feet (101) of the stage while the stage is occupied by an entertainer. 3. No entertainer shall have physical contact with a patron before, during or after performances. This subparagraph shall only apply to physical contact on the premises of the business. 4. No patron shall have physical contact with an entertainer before, during or after performances. This subparagraph shall only apply to physical contact' on the premises of the business. 5. No patron shall directly pay or give any gratuity to an entertainer. 6. No entertainer shall solicit any gratuity from a patron. 19.43.090 Gross receipts records. A. Maintenance. The owner of a sexually oriented business shall maintain complete records which can be segregated with regard to all transactions involving products, merchandise, services or entertainment which characterized by an emphasis on specified sexual activities or the exposure of specified anatomical areas. Such records shall be sufficient to establish the percentage of gross receipts of the business which is derived from such transactions. Such records shall be maintained for at least three years after the end of the calendar year for which the records were created. B. Exemption. This section shall not be applicable to a sexually oriented business for which such transactions constitute 970414 11158-00002 trb 1390529.db - 14 - less than fifteen percent (15t) of the gross receipts of the business. 19.43.100 Register and permit number of entertainers. A. Maintenance. Every owner of an adult cabaret and every owner of an adult theater shall maintain on the premises of such business a register of all entertainers who perform at the business. Such register shall list each entertainer's legal. name, stage name(s), and sexually oriented business permit number. B. Annual Filing. Every owner of an adult cabaret and every owner of an adult, theater shall annually file with the Director a copy of the register of entertainers who perform at the business. Such filing shall be accompanied by a statement, signed ry the owner, that all of the information in the register is true and correct to the best of the owner's information and belief. 19.43.110 Employment of persons without permits. No permittee, owner, operator or other person in charge of a sexually oriented business shall allow any person to perform at the business unless such person is in possession of a valid sexually oriented business entertainer permit. 19.43.120 Display of permit. Every sexually oriented business shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such business. The permit shall be displayed in a conspicuous place so that it may be readily seen by all persons entering the sexually oriented business. 19.43.130 Inspections. The owner, operator, or other person in charge of asexually oriented business shall allow City officers and their authorized representatives to -conduct unscheduled inspections of the premises of the sexually oriented business for the purpose of ensuring compliance with the law at any time the sexually oriented business is open for business or is occupied. 19.43.140 Conditions. The requirements of this chapter shall be deemed conditions of sexually oriented business permit approvals. Failure to comply with every such requirement shall be grounds for suspension or revocation of a sexually oriented business permit. ARTICLE III. SEXUALLY ORIENTED BUSINESS ENTERTAINER PERMIT 19.43.150 Sexually oriented business entertainer permit. 970414 11158-00002 trb 1390529.db - is - A. Permit required. It is unlawful for any person to perform at a sexually oriented business unless such person first obtains from the Director, and continues to maintain in full force and effect, a sexually oriented business entertainer permit. B. Persons eligible. No person less than eighteen (18) years of age shall be eligible for a sexually oriented business entertainer permit. C. Application requirements. The following shall be submitted to the Director at the time of application for a sexually oriented business entertainer permit: 1. A completed application form signed by: (i) the applicant; and (ii) the owner of the sexually oriented business in which the applicant intends to perform. 2. The applicant's legal name and any other names (including stage names and aliases) used by the applicant. 3. Age, date and place of birth. 4. Height, weight, hair and eye color. 5. Present residence address and telephone number. 6. Whether the applicant has ever been convicted of: a. Any of the offenses set forth in Sections 315, 316, 266a, 266b, 266c, 266e, 2668, 266h, 266i, 647(a), 647(b) and 647(d) of the California Penal Code as those sections now exist or may hereafter be amended or renumbered. b. The equivalent of any of the aforesaid offenses if committed outside the State of California. 7. 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 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. 8. State driver's license or identification number. 9. Satisfactory written evidence that the applicant is at least eighteen (18) years of age. 970414 11158-00002 trb 1390529.db - 16 - 10. The applicant's fingerprints on a form provided by the Police Department, and a color photograph clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant. 11. A non -:refundable application fee in an amount set by resolution of the City Council. 19.43.160 Grounds for denial. The Director shall deny an application for a sexually oriented business entertainer permit for any of the following - causes: A. The applicant has knowingly made any false, misleading, or fraudulent statement of material fact in the application or in any report or document required to be filed w;_th the application. B. The applicant -is under eighteen (18) years of age. C. The sexually oriented business entertainer permit is to be used for performing in a business prohibited by State or City law. D. The applicant has been convicted of any of the offenses enumerated in Section 19.43.150(C)(6)(a) of this chapter or an equivalent offense committed outside the State of California; provided, however, that such conviction shall not be grounds for denial if the conviction occurred more than five (5) years prior to the date of the application. 19.43.170 Approval or denial of permit. The Director shall, within three (3) City business days of the filing of a compete application, approve and issue the sexually oriented business permit if there are no grounds for denial; otherwise, the permit shall be denied. Notice of the approval or denial of the permit shall be given to the applicant in writing by first class mail, postage prepaid, deposited in the course of transmission with the United States Postal Service within three (3) City business days of the date of such decision. If the application is denied, the Director shall attach to the notice a statement of the reasons for the denial. The times set forth in this section shall not be extended except upon the written consent of the applicant. Any interested person may appeal the decision of the Director to the City Council in accordance with Article V of this chapter. 19.43.180 Nontransferable. A. No sexually oriented business entertainer permit shall authorize the permittee to perform at a sexually oriented business other than the business stated in the application for the permit. 970414 11158-00002 trb 1390529 -db - 17 - B. No sexually oriented business entertainer permit issued pursuant to this chapter shall be transferrable. C. Any attempt to transfer a sexually oriented business entertainer permit is hereby declared invalid and the permit shall automatically become void effective the date of such attempted transfer. 19.43.190 Display of permit. Every entertainer shall have his or her sexually oriented business entertainer permit available for inspection at all times during which such entertainer is on the premises of the sexually oriented business at which the entertainer performs. ARTICLE IV. SUSPENSION OR REVOCATION OF PERMITS 19.43.200 Grounds for suspension or revocation. A. The Director shall suspend or revoke a sexually oriented business permit for the following causes: 1. The permittee has knowingly made any false, misleading or fraudulent statement of material fact in the application, or in any report or record required to be filed with the City. 2. The permittee, or an employee, owner, agent, partner, director, stockholder, or manager of the sexually oriented business has knowingly failed to comply with any of the requirements of this section. 3. The permittee, or an employee, owner, agent, partner, director, stockholder, or manager of the sexually oriented business has knowingly allowed or permitted the occurrence of criminal activity on the premises of the sexually oriented business. -4. The permittee, or an employee, owner, agent, partner, director, stockholder, or manager of the sexually oriented business has committed a misdemeanor or felony in the conduct of the business. 5. The permittee, or an employee, owner, agent, partner, director, stockholder, or manager of the sexually oriented business has failed to abide by any disciplinary action previously imposed by an authorized City official. 6. The approved use has been substantially enlarged without City approval. B. The Director shall suspend or revoke a sexually oriented business entertainer permit for the following causes: 970414 11158-00002 trb 1390529.db 18 1. The permittee has knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit, or in any report or record required to be filed with the City. 2. The permittee has engaged in one of the activities described below while on the premises of a sexually oriented business: a. Unlawful sexual intercourse, sodomy, oral copulation, or masturbation. b. Unlawful solicitation of sexual intercourse, sodomy, oral copulation, or masturbation. c. Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code. d. 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. e. An 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. f. Any conduct prohibited by this section. 3. Failure to abide by an disciplinary action previously imposed by an authorized City official. 19.43.210 Procedure for suspension or revocation. A. Notice. On determining that grounds for permit revocation exist, the Director 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(s) upon which the proposed suspension or revocation is based. The notice shall be mailed, postage prepaid, addressed to the last known address of the permittee, or shall be personally delivered to the permittee, at least ten (10) days prior to the hearing date. B. Hearing. Hearings shall be conducted in accordance with procedures established by the Director. All parties involved shall have a right to: (1) offer testimonial, documentary and tangible evidence bearing on the issues; (2) be represented by counsel; and (3) confront and cross-examine witnesses. 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 970414 11158-00002 trb 1390529.db - 19 - section may be continued for a reasonable time for the convenience of a party or a witness. C. Penalty. After holding the hearing in accordance with this section, upon determining that there are sufficient grounds for disciplinary action, the Director shall impose one of the following penalties: 1. A warning; 2. Suspension of the permit for a specified period not to exceed six (6) months; 3. Revocation of the permit. The Director may, in conjunction with the issuance of a warning or the suspension of a permit, order the rermittee to take appropriate corrective action. ARTICLE V. APPEALS 19.43.220 Appeals. A. Who may appeal. Any interested person may appeal the Director's issuance, denial of issuance, suspension or revocation of a sexually oriented business permit or sexually oriented business entertainer permit to the City Council in accordance with the provisions of this section. B. Appeal period. A written appeal petition must be filed with the city clerk no later than fourteen (14) calendar days after the decision of the Director; provided, however, that if the fourteen (14) days expires on a date that city hall is not open for business, then the appeal period shall be extended to the next City business day. Failure to file a timely appeal petition deprives the City Council of jurisdiction to hear the appeal. C. Form of appeal petition. The appeal petition must indicate in what way the appellant contends the Director's decision was incorrect or must provide extenuating circumstances which the appellant contends would justify reversal or modification of the Director's decision. D. Director's decision stayed. The effectiveness of any decision of the Director to suspend or revoke a sexually oriented business permit or sexually oriented business permit shall be stayed during: (1) the appeal period set forth in paragraph B of this section; and (2) the pendency of any appeal. E. City Council consideration. The City Council shall consider an appeal of a decision by the Director at its first available regular meeting following submission of the appeal, unless the appellant consents in writing to an extension. At 970414 11158-00002 trb 1390529.db 2 least ten (10) days prior to the appeal hearing before the City Council, written notice of such hearing shall be mailed to the appellant. The City Council may continue the appeal hearing as necessary or convenient. F. City Council decision. No later than forty-five (45) days from the filing of a timely appeal, unless the appellant consents to an extension, the City Council shall render a decision on the appeal. The City Council may affirm, modify, or reverse the decision of the Director. The decision of the City Council shall be made by resolution and shall be final. No later than three (3) City business days after the City Council's decision, notice of the decision and a copy of the resolution shall be mailed by first-class mail, postage prepaid, to the appellant. Such notice shall contain the substance of the following statement: "You are hereby notified that the time within which judicial review of this decision may be sought is governed by California Code of Civil Procedure Section 1094.6." G. Judicial review. The appellant may seek judicial review of the City Council's decision in accordance with California Code of Civil Procedure Section 1094.5 et sect or as otherwise permitted by law. ARTICLE VI. MISCELLANEOUS 19.43.230 Existing adult businesses. A. Any sexually oriented business lawfully operating on the effective date of this chapter in violation hereof shall be deemed a non -conforming use. B. Any sexually oriented business lawfully operating on the effective date of this chapter which becomes nonconforming due to the location criteria enumerated in Section 19.43.060 shall cease operation, or otherwise be brought into full compliance with the location criteria of this chapter, not later than twenty (20) years following the effective date of this chapter. C. Any sexually oriented business lawfully operating on the effective date of this chapter which becomes nonconforming due to either the design standards enumerated in Section 19.43.070 or the performance standards enumerated in Section 19.43.080 shall cease operation, or otherwise be brought into full compliance with the design standards and performance standards of this chapter, not later than one (1) year following the effective date of this chapter. D. Any sexually oriented business lawfully operating on the date of being annexed by the City which becomes nonconforming due to the location criteria enumerated in Section 19.43.060 shall cease operation, or otherwise be brought into full 970414 11158-00002 trb 1390529.db - 21 - compliance with the location criteria of this chapter, not later than twenty (20) years following the date of annexation. E. Any sexually oriented business lawfully operating on the date of being annexed by the City which becomes nonconforming due to either the design standards enumerated in Section 19.43.070 or the performance standards enumerated in Section 19.43.080 shall cease operation, or otherwise be brought into full compliance with the design standards and performance standards of this chapter, not later than one (1) year following the date of annexation. F. A sexually oriented business lawfully operating as a conforming use is not rendered a non -conforming use by the subsequent location of: (i) a residential use within (number) feet of the sexually oriented business; or (ii) a park, religious institution or school within (number) feet of the sexually oriented business. This exemption shall only apply if the sexually oriented business is continuous, which means that interruptions in use cannot exceed six, (6) months. 19.43.240 Employment of and services to minors. No permittee, operator or other person in charge of a sexually oriented business shall allow any person who is not at least eighteen (18) years of age to enter or remain within the sexually oriented business. Any permittee, operator, or other person in charge of an business who allows any person who is not at least eighteen (18) years of age to enter or remain within the sexually oriented business shall be subject to a civil fine not to exceed $10,000 per violation, suspension or revocation of the sexually oriented business permit, or both such fine and suspension or revocation. 19.43.250 Number of businesses. No building, structure or other facility shall contain more than one (1) type of sexually oriented business, as such types of sexually oriented businesses are defined in this chapter. 19.43.260 Regulations nonexclusive. The provisions of this chapter regulating sexually oriented businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other applicable provisions of the Code or other law.. 19.43.270 Conflicts. If the provisions of this chapter conflict with or contravene any other provisions of this Code, the provisions of this chapter shall prevail as to all matters and questions arising out of the subject matter of this chapter." 970414 11158-00002 trb 1390529.db 2 2 1. SECTION 3. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remainder of the Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. SECTION 4. Publication. The City Clerk shall cause this Ordinance to be published at least once in a newspaper of general circulation published and circulated in the City within fifteen (15) days after its passage, in accordance with Section 36933 of the Government Code, shall certify to the adoption of this Ordinance, and shall cause this Ordinance and her certification, together with proof of publication, to be entered in the Book of Ordinances of the Council of this City. PASSED, APPROVED and ADOPTED this day of 1997. MAYOR ATTEST: CITY CLERK 970414 11158-00002 trb 1390529.db - 23 - STATE OF CALIFORNIA COUNTY OF ss. CITY OF 1, , City Clerk of the City of and ex -officio clerk of the City Council, DO HEREBY CERTIFY UNDER PENALTY OF PERJURY, that the foregoing is a true and correct copy of Ordinance No. of said City which was introduced at a regular meeting of the City Council held . 1997 and adopted at a regular meeting of said Council held 1997 by the following vote: AYES: NOES: ABSTAIN: ABSENT: City Clerk 970414 11158-00002 trb 1390529.db - 24 - 0