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Ordinance 1993-07ORDINANCE NO. 93-7 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GILROY REGULATING ADULT BUSINESSES AND REPEALING AND REPLACING CERTAIN SECTIONS OF THE GILROY ZONING ORDINANCE WHEREAS, provisions of the City of Gilroy's ("city") Zoning Ordinance that regulate Adult Businesses areinadequate and out of date, and because of their age, the provisions fail to fully take into account the secondary effects that are associated with Adult Business uses and fail to protect the needs of the City and its residents today and in the future; and WHEREAS, the City Council heard testimony at its meetings on December 7 and December 10, 1992 from numerous members of the public testifying about the deleterious secondary effects of Adult Businesses on a community, specifically identifying negative impacts on children, increased crime against women and children, increased police activity, health issues including sexually transmitted diseases, the introduction of organized crime into the City and impacts on adjacent residential areas in the City; and WHEREAS, it is recognized that Adult Businesses, due to their nature and deleterious secondary effects, can have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, and also when operating during late night hours, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and WHEREAS, on December 10, 1992, The City Council adopted Ordinance No. 92-20, titled AN URGENCY ORDINANCE OF THE CITY OF GILROYAMENDING THE ZONING ORDINANCE ANDMUNICIPAL CODESREGULATING ADULT BUSINESSES AND PROHIBITING ANY USES WHICH MAY BE IN CONFLICT WITH CONTEMPLATED REVISIONS TO THESE REGULATIONS; and WHEREAS, on January 11, 1993, the City Council held a duly noticed public meeting and issued a report, pursuant to ORDINANCE NO. 93 - 7 --1-- Government Code section 65858(d), titled A REPORT OF THE COUNCIL OF THE CITY OF GILROY CONCERNING ORDINANCE NO. 92-20; and WHEREAS, on January 19, 1993, after considering all the written and oral testimony offered, as well as the recommendations of its professional Staff, the City Council adopted Ordinance No. 93-2, titled AN URGENCY INTERIM ORDINANCE OF THE CITY OF GILROY PROHIBITING ANY USES WHICH MAY BE IN CONFLICT WITH CONTEMPLATED REVISIONS TO THE ZONING ORDINANCE AND MUNICIPAL CODES REGARDING ADULT BUSINESS USES; and WHEREAS, the City Planning Commission on February 4, 1993 held a duly noticed public hearing to receive input and testimony from the public concerning the subject of regulation of Adult Business uses under this proposed ordinance ("Ordinance"); and WHEREAS, the city Council held a duly noticed public hearing on February 16, 1993 and heard testimony concerning this Ordinance, and has determined that this Ordinance is necessary to establish reasonable and uniform regulations that will reduce the adverse secondary effects that Adult Businesses have upon the residents of the City; and WHEREAS, the City Council has considered the decisions of the United States Supreme Court and lower courts regarding local regulation of Adult Businesses, including but not limited to: Young v. American Mini-Theatres, Inc,, 427 u.s. 50 (1976), reh. denied, 429 U.S. 873; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), reh. denied, 475 U.S. 1132; FW/PBS. Inc. v. Dallas, 493 U.S. 215 (1990); ~akeland Lounge V, City of Jackson (5th Cir. 1992) 973 F.2d 1255; Movie and Video World v. Board of County Commissioners (S.D. Fla. 1989) 723 F.Supp. 695; Smith v. County of Los Angeles (1989) 211 Cal.App.3d 188; and City of National City v. Weiner (1992) 3 Cal.4th 832; and WHEREAS, it is not the intent of this Ordinance to suppress any speech activities protected by the First Amendment, ORDINANCE NO. 93 - 7 -2- but to enact a content-neutral ordinance which addresses the adverse secondary effects of Adult Businesses; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ~GILROY DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. A. The city Council finds that this Ordinance is necessary in order to protect the public health, safety and welfare of its residents. The regulations contained herein aim to lessen the potential secondary effects of Adult Businesses such as negative impacts on minors, crime, blighting of neighborhoods, the increased threat of the spread of sexually transmitted diseases, the maintenance of property values, and to protect and preserve the quality of the City's neighborhoods and the City's commercial districts. The city recognizes and relies upon the experience of other cities and counties in adopting adult business regulations including, but not limited to, the County of Los Angeles; the City of National City, California; the City of Dallas, Texas; the City of Renton, Washington; the City of Jackson, Mississippi; and the County of Palm Beach, Florida, as discussed in the cases cited above, in support of this Ordinance. The City also recognizes and relies upon the studies done by the City of Los Angeles in 1977, which address the secondary effects of adult uses within a community in support of this Ordinance, the 1991 report to the City of Garden Grove by Drs. McCleary and Meeker on the relationship between crime and adult business operations and the 1993 Gilroy Planning Department's report. B. The City Council finds that the establishment of a conditional use permit requirement and the limitation on locations of Adult Businesses to areas in the City suitable for commercial uses of a high intensity is a legitimate and reasonable means of insuring that mitigation of particularized secondary impacts of a proposed Adult Business in a specific location is accomplished. ORDINANCE NO. 93 - 7 -3- C. The City Council does not intend to regulate in any area preempted by California or Federal law, including but not limited to regulation of speech, nor is it the intent of the City Council to preempt regulation by the State Alcoholic Beverage Control Commission. B~CTION Z. The Zoning Ordinance of the city of Gilroy is hereby amended as follows: A. Section 2.20 is hereby amended by deleting therefrom the reference to and definitions for: 1. Adult Entertainment Establishments; and 2. Adult Entertainment Enterprises; and 3. Sexual Anatomical Areas 4. Sexual Activities B. Section 2.20 is hereby amended by deleting therefrom the definition of "Person" and replacing it as follows: 1. Person. "Person" shall mean any individual, firm, copartnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, syndicate, county, city and county, municipality, district, joint powers authority or other political subdivision, or any other group or combination acting as a unit. C. Section 18.30 is hereby amended by deleting from the Commercial Use Table the categories of "Adult Entertainment Estab- lishment'' and "Massage Parlo~ or Spa", and by adding thereto new categories as follows: ,' POICl I 02 I 03 I HS I CM !, 1 Adult Businesses I I C I i ~X~ Massage Therapy (licensed provider) l X i ~ , D. The existing language of Footnote No. 1 is deleted and replaced with the following: 1 - Conditionally permitted in the C3 District except for C3 property that is part of a block which abuts First Street, and in accordance with the requirements set forth in Section 28. ORDINANCE NO. 93 - 7 -4- SECTION 3. The Zoning Ordinance of the City of Gilroy is hereby amended by adding thereto a new Section 28, Adult Businesses, ("Section") to read as follows: SECTION 28. 28.10 DEFINITIONS. ADULT BUSINESSES In addition to the definitions contained in Section 2 of the Zoning Ordinance, the following words and phrases shall, for the purposes of this Section, be defined as follows, unless it is clearly apparent from the context that another meaning is intended. Should any of the definitions be in conflict with the current provisions of the Zoning Ordinance, the definitions in this Chapter shall prevail: A. ADULT BUSINESS. "Adult Business" shall mean those businesses meeting one or more of the following definitions: 1. ADULT ARCADE. "Adult Arcade" shall mean an establishment or portion thereof where, for any form of consider- ation, one or more still or motion picture projectors, slide projectors, or similar machines, or other image producing machines, for viewing by five (5) or fewer persons each, are used to show films, motion pictures, video cassettes, computer displays, slides, or other photographic reproductions which are characterized by the depiction or description of "Specified Sexual Activities" or "Specified Anatomical Areas." 2. ADULT BOOKSTORE, ADULT NOVELTY STORE, OR ADULT VIDEO STORE. "Adult Bookstore," "Adult Novelty Store," or "Adult Video Store" shall mean a commercial establishment which has as a substantial portion of its stock-in-trade or a substantial portion of its revenues or devotes a substantial portion of its interior business or advertising to the sale, rental or viewing for any form of consideration, of any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, ORDINANCE NO. 93 - 7 --5-- films, motion pictures, video cassettes, slides, computer software or other visual representations which are characterized by the depiction or description of "Specified Sexual Activities" or "Specified Anatomical Areas"; or instruments, devices or parapher- nalia which are designed for use in connection with "Specified Sexual Activities." a. An establishment may have other principal business purposes or operations that do not involve the offering for sale, rental, or viewing of materials depicting or describing "Specified Sexual Activities" or "Specified Anatomical Areas," and still be categorized as Adult Bookstore, Adult Novelty Store, or Adult Video Store. Such other business purposes or operations will not serve to exempt such establishments from being categorized as an Adult Bookstore, Adult Novelty Store or Adult Video store so long as one of its principal business purposes is offering for sale or rental, for some form of consideration, the materials specified above. b. Exclusion. A commercial establishment shall not be considered to be an Adult Bookstore, Adult Novelty Store or Adult Video Store, and shall not be required to obtain an "Adult Business Permit" under this chapter where (a) the commercial establishment rents or sells the material set forth above exclu- sively for off-premises use by the customer, and (b) a substantial portion of its business is not in selling or renting the material set forth above. 3. nightclub, bar, ADULT CABARET. "Adult Cabaret" shall mean a restaurant, bottle club, or similar commercial establishment, whether or not alcoholic beverages are served, which features: 1) persons who appear Semi-Nude; 2) live performances which are characterized by the exposure of "Specified Anatomical Areas" or by "Specified Sexual Activities," or 3) films, motion pictures, video cassettes, computer software, slides, or other photographic reproductions which are characterized by the depiction ORDINANCE NO. 93 - 7 --6-- or description of "Specified Sexual Activities" or "Specified Anatomical Areas." 4. ADULT DANCE STUDIO. "Adult Dance Studio" shall mean any establishment or business which provides for members of the public a partner for dance where the partner is "Nude" or "Semi-Nude" or where the partner, or the dance, is distinguished or characterized by the emphasis on matter depicting, or describing or relating to "Specified Sexual Activities" or "Specified Anatomical Areas." 5. ADULT ENTERTAINMENT ENTERPRISE. "Adult Entertainment Enterprise" shall mean a commercial establishment, other than one defined in this subsection as an Adult Business, which has one of its principal business purposes the offering of forms of entertainment on its premises involving the depiction or description of "Specified Sexual Activities" or "Specified Anatomical Areas." 6. ADULT HOTEL OR ADULT MOTEL. "Adult Hotel" or "Adult Motel" shall mean a hotel or motel or similar commercial establishment which: 1) offers public accommodations, for any form of consideration, which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, computer software, slides or other photographic reproductions which are characterized by the depiction or description of "Specified Sexual Activities" or "Specified Anatomical Areas" and which advertises the availability of this sexually oriented type of Material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising including but not limited to newspapers, magazines, pamphlets or leaflets, radio or television, or, 2) offers a sleeping room for rent for a period of time less than ten (10) hours; or 3) allows a tenant or occupant to sub-rent the sleeping room for a time period of less than ten (10) hours. ORDINANCE NO. 93 - 7 -7- 7. ADULT MOTION PICTURE THEATER. "Adult Motion Picture Theater" shall mean a commercial establishment where films, motion pictures, video cassettes, computer software, slides or similar photographic reproductions characterized by the depiction or description of "Specified Sexual Activities" or "Specified Anatomical Areas" are regularly shown for any form of consider- ation. 8. ADULT THEATER. "Adult Theater" shall mean a theater, concert hall, auditorium, or similar commercial establish- ment which, for any form of consideration, regularly features persons who appear Semi-Nude or live performances which are characterized by exposure of "Specified Anatomical Areas" or by "Specified Sexual Activities." 9. ESCORT AGENCY. "Escort Agency" shall mean a person or business association who furnishes, offers to furnish, or advertises to furnish "Escorts" as one of its primary business purposes for a fee, tip, or other consideration. 10. FIGURE MODELING STUDIO. "Figure Modeling Studio" shall mean any establishment or business which provides for members of the public, the services of a live human model for the purpose of reproducing the human body, wholly or partially in the nude, by means of photograph, painting, computer software, sketch- ing, drawing, or other pictorial form. 11. MASSAGE PARLOR. "Massage Parlor" shall mean any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment manipulation of the human body which occurs as a part of or in connection with "Specified Sexual Activities," or where any person providing such treatment, manipulation, or service related thereto, exposes "Specified Anatomical Areas." The definition of Adult Businesses shall not include the practice of massage in any licensed hospital, nor by a licensed hospital, nor by a physician, surgeon, chiro- ORDINANCE NO. 93 - 7 -8- practor or osteopath, nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, nor by trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program, nor by any California State licensed physical therapist, nor by any California State licensed massage practitioners. 12. SEXUAL ENCOUNTER ESTABLISHMENT. "Sexual Encounter Establishment" shall mean a business or commercial establishment that as one of its primary business purposes, offers for any form of consideration, a place where two or more persons may congregate, a~sociate, or consort for the purpose of "Specified Sexual Activities" or the exposure of "Specified Anatomical Areas" or activities when one or more of the persons is Semi-Nude or in a State of Nudity. The definition of Adult Business shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the State of California engages in medically approved and recognized sexual therapy. 13. SEMI-NUD~ MODEL STUDIO. "Semi-Nude Model Studio" shall mean any place where a person, who appears Semi-Nude or displays "Specified Anatomical Areas" is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons. B. ADULT BUSINESS PERMIT. "Adult Business Permit" shall mean that permit issued by the Chief of Police pursuant to the Municipal Code regulating Adult Businesses. C. EMPLOYEE. "Employee" shall mean a person who works or performs in and/or for an Adult Business, regardless of whether or not said person is paid a salary, wage or other compensation by the Operator of said business. D. ESCORT. "Escort" shall mean a person who, for any form of consideration or gratuity, agrees or offers to act as a companion, guide, or date for another person, or who agrees or ORDINANCE NO. 93 - 7 -9- offers to privately model lingerie or to privately perform a striptease for another person. E. ESTABLISH. "Establish" shall mean and include any of the following: 1. To open or commence any such business as a new business; or 2. To convert an existing business, whether or not an Adult Business, to any of the Adult Businesses defined in this Section; or 3. To add any of the Adult Businesses defined in this Section to any other existing Adult Business; or 4. To relocate any such Adult Business. 5. To expand by 10% or more that portion of the floor area of the premises open to the public as an Adult Business. If an Adult Business has obtained a Use Permit under the require- ments set forth in Section 28 of the Zoning Ordinance, the maximum 10% expansion requirement is measured over the term of the Use Permit. F. MATERIAL. "Material" relative to Adult Businesses, shall mean and include, but not be limited to, accessories, books, correspondence, photograPhs, prints, drawings, paintings, motion computer software, and pamphlets, or any combination pictures, thereof. "Nudity or State of G. NUDITY OR STATE OF NUDITY. Nudity" shall mean the appearance of human bare buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast. 1. "Nudity or State of Nudity" shall not mean nor include a person who appears in a State of Nudity in a modeling class operated: (1) By a proprietary school, licensed by the State of California; a college, junior college, or university supported entirely or partly by taxation; or ORDINANCE NO. 93 - 7 -10- (2) By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or (3) In a structure which: (a) has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and (b) where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and (c) where no more than one nude model is on the premises at any one time. H. OPERATOR. "Operator" shall mean and include the owner, ,,Permittee," general manager, operator or person in charge of an Adult Business or proposed Adult Business. I. PERMITTEE. "Permittee" shall mean a Person in whose name a Permit to operate an Adult Business has been issued, as well as the individual listed as an applicant on the application for a Permit. J. PUBLIC BUILDING WITH PROGRAMS FOR MINORS. "Public Building with Programs for Minors" shall mean any publicly owned building wherein training, education, or any other program designed primarily for minors is conducted. K. pUBLIC PARK OR RECREATION AREA. "Public Park or Recreation Area" shall mean public land which has been designated for park, recreational, or arts activities including, but not limited to, a park, playground, swimming pool, reservoir, athletic field, basketball or tennis courts, or similar public land. L. R~IGIOUS INSTITUTION. "Religious Institution" shall mean any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities. M. RESIDENTIAL ZONE. "Residential Zone" shall mean property which is zoned for a single family house, duplex, town- house, multiple family dwelling(s), or mobile home park or subdivi- ORDINANCE NO. 93 - 7 -11- sion, and campground, recreational trailer park, or travel trailer park. N. SCHOOL. "School" shall mean any publicly or privately owned or operated educational Center or Day Care. O. SEMI-NUDE. "Semi-Nude" shall mean a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices. P. SPECIFIED ANATOMICAL AREAS. "Specified Anatomical Areas" shall mean and include any of the following: 1. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areolae; or 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. Q. SPECIFIED CRIMINAL ACT(S). "Specified Criminal Act(s)" shall mean acts which are sexual crimes against children, sexual abuse, sexual assault, rape, prostitution, solicitation of prostitutes, pandering, pimping, unlawful acts of sexual intercourse, sodomy, oral copulation, or masturbation occurring on the premises of an Adult Business, or crimes including but not limited to distribution of obscenity or material harmful to minors. R. SPECIFIED SEXUAL ACTIVITIES. "Specified Sexual Activities" shall mean and include any of the following: 1. The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts; or 2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; or 3. Masturbation, actual or simulated; or 4. Human genitals in a state of sexual stimula- tion, arousal or tumescence; or ORDINANCE NO. 93 - 7 -12- 5. Excretory functions as part of or in connection with any of the activities set forth in subdivisions 1 through 4 of this subsection. S. TRANSFER OF OWNERSHIp OR CONTROL OF AN ADULT BUSINESS. "Transfer of Ownership or Control of an Adult Business" shall mean and include any of the following: 1. The sale, lease or sublease of the business; or 2. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or 3. The establishment of a trust, gift or other similar legal devise which transfers ownership or control of the business. T. USE PERMIT. "Use Permit" shall mean a conditional use permit approved by the City of Gilroy in accordance with its Zoning Ordinance regulations including this Section. U. VIEWING BOOTH. "Viewing Booth" shall mean any portion of an Adult Business which portion is: 1. Partially enclosed; and 2. and Has a floor area of less than 150 square feet; 3. Is designed for viewing films, motion pictures, video cassettes, computer displays, slides, or other photographic reproductions which are characterized by the depiction or descrip- tion of "Specified Sexual Activities" or "Specified Anatomical Areas." ZS.ZO PROHIBITION. A. A Person shall not use any premises for an Adult Business or Establish or operate an Adult Business except within the Shopping Center Commercial District (C3) excluding C3 property that is part of a block which abuts First Street, unless otherwise ORDINANCE NO. 93 - 7 -13- permitted in this Section, and then only as specified in this Section, and subject to all other applicable regulations enumer- ated in the Zoning Ordinance, the Gilroy City Code and State or Federal law. B. Upon the Transfer of Ownership or Control of an Adult Business in existence upon the effective date of this Section which is located outside the Shopping Center Commercial District (C3), such Adult Business shall cease its operations or otherwise be deemed in violation of this Section and the Zoning Ordinance. 28.30 LOCATIONAL REGULATIONS. A. No Person shall Establish or cause or permit to be Established an Adult Business premises within 1000 feet of another Adult Business premises, within 1000 feet of any School, Public Park or Recreation Area, Public Building with Programs for Minors, or within 250 feet of any Residential Zone or Religious Institu- tion. B. Any Adult Business lawfully established and lawfully operating under the Zoning Ordinance and the Gilroy City Code is not in violation of these regulations by the subsequent establish- ment of School, Public Park or Recreation Area, Public Building with Programs for minors, Residential Zone, or Religious Institu- tion within the respective distances specified in subsection (A) above for each type of use. This provision applies only to the renewal of a valid Use Permit and does not apply when an applica- tion for a Use Permit is submitted after a Use Permit has expired or has been revoked. 28.40 MEASUREMENT OF DISTANCE. Distance between any two Adult Business premises shall be measured in a straight line, without regard to intervening structures or objects, from the nearest entrance of an Adult Business premises to the nearest entrance of the second Adult Business premises. The distance ORDINANCE NO. 93 - 7 -14- between any Adult Business premises and any Religious Institution, School, Public Park or Recreation Area, Public Building with Programs for Minors or Residential Zone shall also be measured in a straight line, without regard to intervening structures or objects, from the nearest entrance of'the Adult Business premises to the nearest property line of a Religious Institution, School, Public Park or Recreation Area, Public Building with Programs for Minors or Residential Zone. 28.50 USE pER~IT--R~QUIP~~. A. Adult Businesses shall be conditionally permitted in the Shopping Center Commercial District (C3) except for C3 property that is part of a block which abuts First Street. In addition to those regulations governing conditional use permits set forth in the Zoning Ordinance and except as modified in this Section, and in addition to those regulations set forth in the Gilroy City Code, any Adult Business shall be subject to the following regulations: B. All persons wishing to Establish an Adult Business within the city must apply for a Use Permit, and cannot Establish such a business until a Use Permit is granted and effective. C. An Adult Business which was in existence prior to the enactment of this Section may continue its use for a period of three (3) years from the effective date of this Ordinance and shall not be required to obtain a Use Permit prior to the end of that time period unless it otherwise meets one of the conditions contained in the definition of "Establish." D. It is the burden of the applicant to supply evidence to justify the grant of a Use Permit. E. Any Person desiring to operate an Adult Business within the City shall file with the Planning Department a Use Permit applicationon a standard application form supplied by the ORDINANCE NO. 93 - 7 -15- Planning Department, and in addition provide the information and documents required pursuant to Section 28.60. F. In addition to any conditions that may be placed on the approval of a Use Permit by the Planning Commission or by the City Council on appeal, no Use Permit shall become effective until such time as the Permittee has received an Adult Business Permit from the Chief of Police. 28.60 USE PERMIT--CONTENTS OF APPLICATION. A. The applicant shall be the Operator of the proposed Adult Business. B. The application must also be signed by the property owner if different from the applicant. C. The application shall include the property owner's and the applicant's mailing address, and name and phone number of the person who is responsible for providing access to the proposed use for inspection purposes. D. The application shall list the legal form of the applicant; e.g., individual, partnership, corporation: 1. If the applicant is an individual, the applica- tion shall list his or her legal name, and any aliases; 2. If the applicant is a partnership, the applica- tion shall list the full and complete name of the partnership, the legal names of all partners, and all aliases used; and 3. If the applicant is a corporation, the applica- tion shall list the full and complete corporate name, the legal names, and all aliases used by officers, directors and principal stockholders (i.e., all stockholders with 10% or more of all outstanding shares). E. The application shall list whether, preceding the date of application, the applicant or any of the individuals listed pursuant to the subdivision C of this subsection, has: ORDINANCE NO. 93 - 7 -16- 1. Had a previous Use Permit under this Section revoked, as well as the date of such revocation, and 2. Whether the applicant has been a partner in a partnership or an officer, director or principal stockholder of a corporation whose Use Permit under this Section has been revoked, as well as the date of the revocation. F. The application shall include a description of the proposed use, including reference to definitions in this Section. G. The application shall include a statement that the locational regulations of 28.30 have been satisfied using the method of measurement described in 28.40. H. The application shall include accurately scaled plot plans indicating the structure in which the Adult Business is to be conducted and identifying and locating all land uses and property lines within a radius of 1250 feet of the structure. I. If the Adult Business proposes to operate a Viewing Booth(s), the applicant shall not only fully comply with the Gilroy City Code provisions concerning Viewing Booths but the applicant shall also submit a diagram of the interior premises in accordance with the requirements set forth in the Gilroy city Code as part of the contents of the application. 28.70 USE PERMIT--APPLICATION FEE. The City Council, by resolution, shall set a reasonable nonrefundable application fee for a Use Permit for an Adult Business. The fee shall not exceed the reasonable estimated costs of the City to process the permit application. 28.80 USE PERMIT--TIME TO GI~a/TT OR DENY. A. Within thirty (30) days from the date the applica- tion for a Use Permit for an Adult Business is date-stamped received at the Planning Department, the Planning Director shall determine if it is complete, and if incomplete, shall notify the ORDINANCE NO. 93 - 7 -17- applicant in writing of its specific deficiencies. If a written determination is not provided to the applicant within thirty (30) days after it is submitted to the Planning Department, the applica- tion shall be deemed complete. B. The Planning Commission shall grant, conditionally grant, or deny an application for a Use Permit for an Adult Business within three (3) months from the date the application is deemed to be complete in all cases except where a negative declara- tion or Environmental Impact Report is required under the California EnVironmental Quality Act's Guidelines, and its process- ing cannot be completed within the above time limit. In such instance, the application shall be diligently processed, but the timelines set forth in the State law will control. C. Ail department or agency inspections, including but not limited to health, fire, and building inspections, which are required for the Planning Commission to consider the issuance of a Use Permit shall be completed within the time limits for Planning Commission action provided in this Section. 28.90 DEVELOPMENT AND PERFORMANCE STANDARDS. A. Adult Businesses shall comply with all of the following development and performance standards: 1. Advertisements, displays or other promotional materials depicting or describing, "Specified Anatomical Areas", or "Specified Sexual Activities", or displaying instruments, devices, or paraphernalia which are designed for use in connection with '"Specified Sexual Activities" shall not be shown or exhibited so as to be visible from other areas open to the general public. 2. Ail building openings, entries, and windows for an Adult Business shall be located, covered, or screened in such a manner as to prevent a view into the interior of an Adult Business from any area open to the general public. ORDINANCE NO. 93 - 7 -18- 3. Ail entrances to an Adult Business shall be clearly and legibly posted by a notice indicating that minors are prohibited from entering the premises. 4. No loudspeakers or sound equipment shall be used by an Adult Business for the amplification of sound to a level discernable by the public beyond the walls of the building in which the Adult Business is conducted. 5. No residential structure or any other non-conforming structure shall be converted for use as an Adult Business after enactment of the provisions of this Section. 6. An on-site security program, including required interior and implemented. exterior lighting plans, shall be prepared and The security program shall include the following: i. The presence of an on-site manager during all business hours. ii. Ail off-street parking areas and building entries serving the Adult Business shall be illuminated during all hours of operation with a lighting system designed to provide a minimum maintained horizontal illumination of greater than one (1) foot candle of light on the parking surface and/or walkway. In the event the Adult Business shares its parking with other businesses, this requirement shall only apply within a radius of 100 feet from any entrance into the Adult Business. iii. All interior portions of the Adult Business, except those areas devoted to mini-motion or motion pictures, shall be illuminated during all hours of operation with a lighting system designed to provide a minimum main- tained horizontal illumination of not less than two (2) foot candles of light at the floor. 7. All exterior areas of Adult Businesses, including buildings, landscaping and parking areas, shall be maintained in a clean and orderly manner. ORDINANCE NO. 93 - 7 -19- 8. An Adult Business shall not remain open for business, or permit any Employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 1:00 a.m. and 8:00 a.m. of any particular day. These hours of operation may be further restricted in the conditions approving a Use Permit for an Adult Business. 28.100 USB PERMIT--DENIAL. The Planning Commission shall deny the application for a Use Permit for any of the following reasons: 1. The application does not meet the standards set forth in Section 50.32. 2. An applicant or an applicant's spouse is overdue on his/her payment to the City of taxes, fees, fines, or penalties assessed against him/her or imposed upon him/her in relation to an Adult Business. 3. An applicant has failed to provide information required on the application for the issuance of the Use Permit or has falsely answered a question or request for information on the application form. 4. The premises to be used for the Adult Business has not been approved as being in compliance with health, fire and building codes by the department or agency responsible under law for investigating said compliance. 5. The required application or permit fees have not been paid. 6. The proposed location is in violation of, or is not in compliance with, any of the provisions of this' Section including, but not limited to, the locational requirements for an Adult Business under this Section. ORDINANCE NO. 93 - 7 -20- 7. The granting of the application would violate a City or County, State or Federal statute, ordinance, regulation or court order. 8. The applicant has had a Use Permit under this Section, or an Adult Business Permit revoked within the preceding twelve (12) months. 9. The proposed use does not conform to the requirements of the Zoning Ordinance and provisions of the Gilroy City Code. 10. The applicant has applied for a Use Permit for a particular location within a period of twelve (12) months from the date of denial by the City of a previous application for a Use Permit at the same location, and there has not been an intervening change in the circumstances which could reasonably be expected to lead to a different decision regarding the former reasons for denial. 28.110 USE PERMIT--EXPIRaTION. A. Any unrevoked Use Permit or renewed Use Permit issued pursuant to this Section, shall, by its own terms, contain a specified expiration date no later than three (3) years after its issuance. B. Any Use Permit approved pursuant to this Section shall become null and void unless the proposed use is established within one (1) year of the date of the approval. 28.120 USE PERMIT--RENEWAL. A. Any unrevoked Use Permit issued pursuant to this Section may be renewed upon written application to the Planning Commission made at least thirty (30) calendar days before the expiration date of a current, valid Use Permit and payment of the then current nonrefundable application fee. A Use Permit shall remain valid pending the Planning Commission's decision if the ORDINANCE NO. 93-7 -21- Permittee has timely filed the application for renewal with proper fee payment. For good cause, the Planning Commission may extend the time for filing a renewal application for up to ninety (90) days and may extend the prior Use Permit pending decision on the renewal application. B. The application for renewal shall supply current information with respect to each category of information required in the initial application. Within thirty (30) days from the date the application for a Use Permit for an Adult Business is date- stamped and received at the Planning Department, the Planning Director shall determine if it is complete, and if incomplete, shall notify the applicant in writing of its specific deficiencies. If a written determination is not provided to the applicant within thirty (30) days after it is submitted to the Planning Department, the application shall be deemed complete. C. The Planning Commission shall make its decision on an application for the renewal of a Use Permit for an Adult Business within three (3) months from the date the application is deemed to be complete in all cases except where a negative declara- tion or Environmental Impact Report is required under the California Environmental Quality Act's Guidelines, and its process- ing cannot be completed within the above time limit. In such instance, the application for the renewal shall be diligently processed, but the timelines set forth in the State law will control. The Planning Commission may extend the Use Permit without change to the original conditions of approval, with amended or deleted conditions, or deny the extension. D. All department or agency inspections, including but not limited to health, fire, and building inspections, which are required for the Planning Commission to consider the renewal of a Use Permit shall be completed within the time limits for Planning Commission action provided in this Section. ORDINANCE NO. 93 - 7 -22- 28.130 USE PERMIT -- REVOCATION. A. Any Use Permit issued pursuant to the provisions of this Section may be revoked in accordance with the procedures set forth below. B. The Director of Planning shall report all facts and information relating to the alleged violation(s) of this Section or of the conditions of the Use Permit to the Planning Commission, who shall set the matter for a public hearing at the first avail- able regularly scheduled meeting of the Planning Commission not less than two (2) weeks nor later than thirty (30) days after receipt of the report. C. Written notice of hearing on the proposed Use Permit revocation together with written notification of the specific grounds of complaint against the Permittee shall be personally delivered or sent by certified mail to the address on the Permit- tee's application for the Use Permit at least ten (10) days prior to the hearing. D. The Planning Commission shall revoke a Use Permit if it makes one or more of the following findings: 1. The use for which the Use Permit was granted is being exercised in violation of any of the provisions of this Section. 2. The use for which the Use Permit was granted is being exercised contrary to the terms or conditions of such permit. 3. The Permittee gave fraudulent or misleading information in the materials submitted during the application process that tended to enhance the applicant's opportunity for obtaining a Use Permit. 4. The use for which the Use Permit was granted is being exercised so as to be detrimental to the public health and safety. ORDINANCE NO. 93-7 -23- 5. The use for which the Use Permit was granted is being exercised so as to constitute a nuisance. 6. The use for which the Use Permit was granted has ceased to exist for one (1) year or more. 7. The use for which the Use Permit was granted is being exercised contrary to or in violation of any City or County, State or Federal statute, ordinance, regulation or court order. E. The Planning Commission, following the termination of the public hearing, shall not later than its next regular meeting unless this time limit is extended by agreement of the parties having an interest in the proceedings, act to revoke the Use Permit or modify the conditions of the Use Permit or determine not to revoke or modify the Use Permit. 28.140 APPEAL. A. Within ten (10) days after the decision of the Planning Commission on a Use Permit, the Planning Director shall mail a copy of the resolution adopted by the Planning Commission setting forth its findings and decision to the applicant and/or Permittee and to any other person who has filed a written request for such notification. B. Any Person may appeal a decision of the Planning Commission made pursuant to this Section to the City Council in writing consistent with the time limit and procedures set forth in Section 51.50 of the Zoning Ordinance. C. An appeal shall be processed and determined pursuant to Sections 51.50, 51.60 and 51.70 of the Zoning Ordinance. The City Council hearing shall be de novo. In reaching its decision, the City Council shall not be bound by formal rules of evidence. D. Notice of the City Council's decision pursuant to Section 51.70 shall be mailed to the applicant, and to the appel- lant if different from the applicant. ORDINANCE NO. 93-7 -24- 28.150 JUDICIAL REVIEW. After a final decision of the City Council on a Use Permit, the applicant or Permittee or other Person having standing may seek prompt judicial review of such action in any court of competent jurisdiction. The City has adopted Code of Civil Procedure § 1094.6 setting a time limit for seeking review of administrative decisions that are subject to review under Code of Civil Procedure § 1094.5. 28.160 APPLICABILITY TO OTHER REGULATIONS. The provisions of this Section are not intended to provide exclusive regulation of the regulated adult uses. Such uses must comply with any and all applicable regulations imposed in other articles of the Zoning Ordinance, other City ordinances, the Gilroy City Code and State and Federal law. 28.170 CONDUCT CONSTITUTING A PUBLIC NUISANCE. In addition to other remedies for violation of the Zoning Ordinance, the conduct of any Adult Business within the City in violation of any of the terms of this Section is hereby found and declared to be a public nuisance. SECTION 2. SEVER~BILITY If any section, subsection, subdivision, sentence, clause, phrase or word of this Ordinance is for any reason held to be invalid or unconstitutional by a court of competent jurisdic- tion, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed and adopted this Ordinance, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid or unconstitutional. ORDINANCE NO. 93-7 -25- SECTION 3. EFFECTIVE DATE This ordinance shall be effective thirty (30) days from and after the date of the final passage and adoption hereof. The City Clerk shall certify to the passage and adoption of this ordinance and cause the same to be published in the manner pre- scribed by law. PASSED AND ADOPTED this 15th day of March, 1993 following vote: by the AYES: NOES: ABSENT: COUNCILMEMBERS: COUNCILMEMBERS: COUNCILMEMBERS: GILROY, HALE, KLOECKER, NELSON, ROWLISON, VALDEZ and GAGE. None. None. APPROVED: ATTEST: DONALD F. GAGE Mayor SUSANNE E. STEINMETZ, City Clerk ORDINANCE NO. 93-7 -26- I, SUSANNE E. STEINMETZ, City Clerk of the City of Gilroy, do hereby certify that the attached Ordinance No. 93-7 is an original ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 15th day of March 19 93, at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 30th .day of December 19 9__3 City Clerk of the City of Gilroy ~ (Seal)