Ordinance 2010-07
ORDINANCE NO. 2010 - 07
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GILROY REPEALING AND READOPTING SECTION 28 OF THE
GILROY ZONING ORDINANCE REGULATING ADULT
BUSINESSES.
WHEREAS, the City of Gilroy regulates adult businesses in order to
protect the needs of the City and its residents today and in the future; and
WHEREAS, the City Council enacted Ordinance 93-8 on March 15,
1993, for the purpose of establishing reasonable and uniform regulations designed to
reduce the secondary effects that adult businesses have on the residents of the City; and
WHEREAS, the City Council amended said ordinance on September 22,
1999, to comply with new statutory requirements resulting from the decision in Baby
Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097 (1998), pertaining to judicial
review; and
WHEREAS, on October 21, 2002, the City Council amended said
ordinance to regulate sexual encounter establishments; and
WHEREAS, the City Council has determined that certain activities,
currently unregulated under Gilroy's Adult Business Ordinance, are likely to have
deleterious secondary effects on the health, safety and well being of the community; and
WHEREAS, the City Council recognizes the possible harmful effects on
children and minors exposed to the effects of such adult businesses, including 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 businesses and thereby
protect the health, safety, and welfare of the citizens of Gilroy; 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 communieable and sexually transmitted
diseases; and
WHEREAS, the City Council finds that loeational criteria are a legitimate
and reasonable means of ensuring that adult businesses are conducted in a manner so as to
minimize their adverse secondary effects and to thereby protect the health, safety, and
welfare of the city's residents, protect citizens from increased crime, preserve the quality of
life, preserve property values and the character of surrounding neighborhoods and
businesses and deter the spread of urban blight. The loeational requirements contained in
this ordinance do not unreasonably restrict the establishment or operation of
constitutionally protected adult businesses in Gilroy and a sufficient and reasonable number
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of alternative locations for adult businesses are provided by this ordinance. The City
Council takes legislative notice of the Untied States Supreme Court decision in City of
Renton v. Playtime Theatres. Inc. that requires the City provide adult businesses a
reasonable opportunity to open and operate. The City Council also takes legislative notice
of the Ninth Circuit's decisions in Topanga Press Inc. v. City of Los Angeles and finds that
under the distance and locational restrictions set forth in this ordinance there are sufficient
sites available for adult businesses within the City; and
WHEREAS, the City Council also finds that locational criteria alone do not
adequately protect the health, safety and general welfare of the citizens of Gilroy and thus
certain requirements with respect to ownership, operation and licensing of adult businesses
are in the public interest. In addition to the fmdings 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 takes legislative notice of the
following: (1) the facts recited in the Ninth Circuit Court of Appeals case entitled Kev. Inc.
v. Kitsao County regarding how live adult entertainment results in secondary effects such
as prostitution, drug dealing and other law enforcement problems and (2) the facts and
holding of the case of Gammoh v. City of La Habm, wherein the Ninth Circuit recognized
that off stage performances by performers who also perform nude and/or semi-nude at an
adult entertainment establishment can cause the same secondary effects as other activities
documented in studies and case law regarding adult establishments, even if the performer is
clothed and the establishment does not serve alcohol; and
WHEREAS, relying on the foregoing and on those findings made below,
the City fmds that adult businesses in Gilroy may lead to detrimental secondary effects
including prostitution, engagement in unlawful sexual activity and engagement in unlawful
drug sales and activity. The City Council bases this conclusion on experiences in other
similarly situated communities in California and nationwide; and
WHEREAS, in addition to the foregoing, and any findings made
previously by the City Council in enacting prior versions of this the City's ordinances
regulating adult entertainment establishments, the City Council finds the following, based
upon its understanding of the documents and judicial decisions cited herein:
(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 businesses (collectively referred to as
'performers') have been found to engage in sexual activities with patrons of adult
businesses on the site of the adult business;
(2) Evidence has demonstrated that performers employed by adult
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;
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(3) Evidence indicates that performers at adult businesses have been
found to engage in acts of prostitution and drug dealing 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 locations 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, drug dealing and casual sex acts at
adult businesses in order to protect the health, safety and welfare of its citizens;
(6) The public health, safety and welfare of all persons in the City must
be protected by the establishment of standards to diminish the possibility of
infection of contagious diseases;
(7) Enclosed or concealed booths, bathrooms open to more than one
person (which do not have an attendant present at all times), and dimly lit areas
within adult businesses greatly increase the potential for misuse of the premises,
including unlawful conduct of a type which facilitates transmission of disease.
Enacting the following requirements will reduce the opportunity for, and therefore
the incidence of, illegal conduct within adult businesses and further facilitates the
inspection of the interior of the premises thereof by law enforcement personnel:
(i) all indoor areas must be open to view by management at all times
(ii) adequate lighting must be provided
(iii) separate bathrooms must be provided for performers and
patrons; and
(iv) bathrooms for patrons must either have an attendant present at
all times or be limited to one person using such bathroom at a time.
(v) no television monitors or video projection, recording or
reproduction equipment are to be permitted in restrooms.
(8) Preventing the exchange of money between performers and patrons
also reduces the likelihood of drug and sex transactions occurring in adult
businesses;
(9) Requiring separations between performers and patrons precludes
them from being within earshot to communicate and thereby reduces the likelihood
that such persons will negotiate narcotics sales and/or transact sexual favors within
the adult business;
(10) Prohibiting physical contact between performers and patrons at adult
businesses, requiring separate entrances for performers and patrons at adult
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businesses, requiring separate entrances for performers from those used for patrons,
requiring adult performances to take place on a raised stage that is separated from
patrons by a distance of at least six feet, requiring separate restrooms for performers
and patrons and for persons of opposite sexes, prohibiting performers from
soliciting payment from patrons, and prohibiting the direct payment to performers
by patrons are a reasonable and effective means of addressing the legitimate
governmental interests of preventing prostitution, the spread of sexually transmitted
diseases and drug transactions, The case law and studies reviewed serve as a
reasonable basis to establish this link;
(11) A closing hours requirement promotes the reduction of deleterious
secondary effects from adult facilities. Such finding is reasonably based on prior
court decisions on the need for closing hours, including the 2003 Ninth Circuit case
of Center for Fair Public Policy v. Maricopa County and other studies in the record
including "Closin' Time: Effective Regulation of Adult Businesses; Hours of
Operation". Such a fmding is also based on the finding that such standards do not
preclude reasonable alternative avenues of communication. For example, the
closing hours requirement in the ordinance still allows adult businesses to operate
seven days a week seventeen (17) hours per day. In addition, the City Council
takes note of the proliferation of adult material on the internet, satellite television,
direct television, CDs, DVDs and that these various media provide alternative
avenues of communication;
(12) Establishment and maintenance of an adult business regulatory
licensing process and operational standards for adult businesses are legitimate and
reasonable means of minimizing the adverse secondary effects of adult businesses
by ensuring that:
(i) Operators of and performers at adult businesses comply with the
city's regulations;
(ii) The recognized adverse secondary effects of a proposed adult
business are mitigated;
(iii) Adult business operators have specific guidelines with respect
to the manner in which they can operate an adult business; and
(iv) The applications for an adult business regulatory license are
handled fairly and expeditiously.
WHEREAS, in adopting this ordinance, City Council takes legislative
notice of the existence and content of: studies concerning the adverse secondary side
effects of adult businesses in other cities, including those in Garden Grove, California
(1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986);
Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1997);
Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979);
Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los
Angeles, California (1977); New York, New York (1994); Newport News, Virginia
(1996); Times Square, New York City (1994). In addition, City Council of the City of
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Gilroy takes legislative notice of the existence and content of other studies concerning the
adverse secondary side effects of adult businesses, including: the Report of the Attorney
General's Working Group on the Regulation of Sexually Oriented Businesses, Attorney
General, State of Minnesota (1989); A Methodological Critique of the Linz- Paul Report:
A Report to the San Diego City Attorney's Office (2003); Sexually Oriented Businesses:
An Insider's View - Testimony of David Sherman before the Michigan House
Committee on Ethics and Constitutional Law (2000); Closin' Time: Effective Regulation
of Adult Businesses' Hours of Operation, by Scott Bergthold (2000); Summaries of Key
Reports Concerning the Negative Secondary Effects of Sexually Oriented Businesses, by
Louis Comus III (2001); Peep Show Establishments, Police Activity, Public Place and
Time: A Study of Secondary Effects in San Diego, California, by Daniel Linz et al.
(2006); Do Peep-shows "Cause" Crime? A response to Linz, Paul, and Yao, by Richard
McCleary et al. (2006); and Rural Hot Spots: The Case of Adult Businesses, by Richard
McCleary (2008). 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 the adult businesses, including the specific activities regulated pursuant to this
ordinance; and
WHEREAS, in enacting this ordinance, the City Council has further
considered the decisions of the United States Supreme Court and lower courts regarding
local regulation of adult businesses, including but not limited to: City of Littleton.
Colorado v. Z.J. Gifts D-4. 541 U.S. 744 (2004); City of Los Angeles v. Alameda Books,
535 U.S. 425 (2002); City of Erie. et al. v. Pap's A.M.. TDBA "Kandyland", 529 U.S. 277
(2000); Barnes v. Glenn Theater, 501 U.S. 560 (1991); City of Renton v. Pla~e
Theatres. Inc. 475 U.S. 41 (1986); Gammoh v. City of La Habm, 395 F.3d 1114 (9 Cir.
2005), amended 402 F. 3d 875, cert denied 126 S.Ct. 374; Dream Palace v. County of
Maricopa 384 F. 3d 990 (9th Cir. 2004); Center for Fair Public Policy v. Maricopa County,
336 F. 3d 1153 (9th Cir. 2003); Colacurcio v. City of Ken!, 163 F.3d 545 (9th Cir. 1998);
Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996); Topanga Press. Inc. v. City of Los
Angeles, 989 Fold 1524 (9th Cir. 1993) Kev. Inc. v. Kitsap County, 793 F. 2d 1053 (9th Cir.
1986); Fantasyland Video. Inc. v. County of San Diego, 373 F. Supp. 2d 1094 (2005);
Krontz v. City of San Diego, 136 Cal.App. 4th 1126 (2006); Tily B., Inc. v. City of
Newport Beach, 69 Cal.AppAth 1 (1998); City of National City v. Wiener, 3 Cal. 4th 832
(1992); and Morris v. Municipal Co!!!!. 32 Cal. 3d 553 (1982).
WHEREAS, based on the foregoing, on February 1, 2010, the City
Council adopted Ordinance No. 2010-04, which repealed Gilroy City Code Section
16.13-1, and repealed and re-adopted its adult business ordinance, Chapter 2A of the
Gilroy City Code, in order to update said ordinance to ensure that the adverse secondary
side effects of adult businesses will not contribute to an increase in crime rates, disease,
or to the blighting or deterioration of the areas in which they are located or surrounding
areas; and
WHEREAS, it is not the intent of the City Council in enacting this
ordinance to suppress any speech activities protected by the First Amendment, but rather
to enact a content-neutral ordinance with addresses the adverse secondary effects of adult
businesses in a manner that ensures the continued and orderly use and development of
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property, while at the same time protecting the rights conferred by the United States
Constitution to adult businesses; and
WHEREAS, Section 28 of the Gilroy Zoning Ordinance regulates adult
businesses; and
WHEREAS, it is necessary to repeal and re-adopt Section 28 of the
Gilroy Zoning Ordinance in order to remove and avoid any and all inconsistencies in
substantive or procedural requirements between it and Chapter 2A of the Gilroy City
Code, as amended by Ordinance No. 2010-04;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
GILROY DOES ORDAIN AS FOLLOWS:
SECTION I
Section 28 of the Gilroy Zoning Ordinance is hereby repealed and readopted in its
entirety to read as follows:
Section 28.10
Definitions
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 in intended. Should any of
the definitions be in conflict with the current provisions of the
Zoning Ordinance, the definitions in this chapter shall prevail:
ADULT ARCADE. "Adult Arcade" shall mean establishment or
portion thereof where, for any form of consideration, 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."
ADULT BOOKSTORE. ADULT NOVEL TV STORE. OR ADULT
VIDEO STORE.
"Adult Bookstore," "Adult Novelty Store," or "Adult Video Store"
shall mean a commercial establishment which 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
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consideration, or anyone or more of the following: books,
magazines, periodicals or other printed matter, or photographs,
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 paraphernalia 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 exclusively 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.
ADULT BUSINESS. "Adult Business" shall mean those businesses
meeting one or more of the following definitions: Adult Arcade;
Adult Bookstore, Adult Novelty Store or Adult Video Store; Adult
Cabaret; Adult Dance Studio; Adult Entertainment Enterprise; Adult
Hotel or Adult Motel; Adult Motion Picture Theater; Adult Theater;
Escort Agency; Figure Modeling Studio.
ADULT BUSINESS PERMIT. "Adult Business Permit" shall mean
that permit issued by the Chief of Police pursuant to the Municipal
Code regulating Adult Business.
ADULT CABERET. "Adult Cabaret" shall mean a nightclub, bar,
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
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by "Specified Sexual Activities," or 3) films, motion pictures, laser
disks, compact disks, digital videos or other digital recordings,
holograms or other electronically generated images or devices,
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."
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 "Specific Anatomical
Areas."
ADULT ENTERTAINMENT ENTERPRISE. "Adult Entertainment
Enterprise" shall mean a commercial establishment, other than one
defined in this subsection as an Adult Business, which has, as 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."
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, laser disks, compact disks,
digital videos or other digital recordings, holograms or other
electronically generated images or devices, 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.
ADULT MATERIAL. "Adult Material" shall mean accessories,
paraphernalia, devices, books, magazines, laser disks, compact
disks, digital videos, digital video disk devices, photographs, prints,
drawings, painting, motion pictures, pamphlets, videos, slides,
tapes, games, holograms or electronically generated images or
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devices including computer software, or any combination thereof
that is distinguished or characterized by its emphasis on matter
depicting, describing or relating to specified sexual activities or
specified anatomical areas.
ADULT MOTION PICTURE THEATER. "Adult Motion Picture
Theater" shall mean a commercial establishment where films,
motion pictures, laser disks, compact disks, digital videos or other
digital recordings, holograms or other electronically generated
images or devices, 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
consideration.
ADULT THEATER. "Adult Theater" shall mean a theater, concert
hall, auditorium, or similar commercial establishment 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."
EMPLOYEE. "Employee" shall mean 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.
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 offers to
privately model lingerie or to privately perform a striptease for
another person.
ESCORT AGENCY. "Escort Agency" shall mean a person or
business association which furnishes, offers to furnish, or
advertises to furnish "Escorts" as one of its primary business
purposes for a fee, tip, or other consideration.
ESTABLISH. "Establish" shall mean and include any of the
following:
(a) To open or commence any such business as a new
business; or
(b) To convert an existing business, whether or not an
Adult Business, to any of the Adult Businesses defined in
this Section; or
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(c To add any of the Adult Businesses defined in this
Section to any other existing Adult Business; or
(d) To relocate any such Adult Business.
(e) To expand by ten percent (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 requirements set forth in Section 28 of the
Zoning Ordinance, the maximum 10% expansion
requirement is measured over the term of the Use Permit.
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 purposes of
reproducing the human body, wholly or partially in the nude, by
means of photograph, painting, computer software, sketching,
drawing, or other pictorial form.
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 Business shall not
include the practice of massage in any licensed hospital, nor by a
licensed hospital, nor by a physical surgeon, chiropractor or
osteopath, nor by a nurse or technician working under the
supervision of a licensed surgeon, chiropractor or osteopath, nor by
trainers for any amateur, semiprofessional or professional athlete or
athletic team for a school athletic program, nor by any California
State licensed massage practitioners.
NUDITY OR STATE OF NUDITY. "Nudity or State of Nudity" shall
mean the appearance of human bare buttocks, anus, male genitals,
female genitals, or the areola or nipple of the female breast.
"Nudity or State of Nudity" shall not mean nor include a person who
appears in a State of Nudity in a modeling class operated:
(a) By a proprietary school, licensed by the State of
California; a college, junior college, or university supported
entirely or partly by taxation; or
(b) 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 partially by taxation; or
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(c) 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
not more than one nude model is on the premises at anyone
time.
OPERATOR. "Operator" shall mean and include the owner,
"Permitee," general manager, operator or person in charge of an
Adult Business or proposed Adult Business.
PERMITEE. "Permitee" 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.
PERSON. "Person" shall mean any individual, firm, co-partnership,
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.
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.
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.
RELIGIOUS INSTITUTION. "Religious Institution" shall mean any
church, synagogue, mosque, temple or building which is used
primarily for religious worship and related religious activities.
RESIDENTIAL ZONE. "Residential Zone" shall mean property
which is zoned for a single family house, duplex, townhouse,
multiple family dwelling(s), or mobile home park or subdivision, and
campground, recreational trailer park, or travel trailer park.
SEMI-NUDE. "Semi-Nude" shall mean a state of dress in which
clothing covers no more than the genitals, pubic region, and
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areolae of the female breast, as well as portions of the body
covered by supporting straps or devices.
SEMI-NUDE 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.
SEXUAL ENCOUNTER ESTABLISHMENT. "Sexual Encounter
Establishment" shall mean a business or commercial establishment
that as one of its primary business purposes, otters for any form of
consideration, a place where two or more persons may congregate,
associate, 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 the 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.
SCHOOL. "School" shall mean any publicly or privately owned or
operated educational Center or Day Care.
SPECIFIED ANATOMICAL AREAS. "Specified Anatomical Areas"
shall mean and included any of the following:
(a) Less than completely and opaquely covered human
genitals, pubic region, buttocks, anus, or female breast
below a point immediately above the top of the areola; or
(b) Human male genitals in a discernibly turgid state,
even if completely and opaquely covered.
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.
SPECIFIED SEXUAL ACTIVITIES. "Specified Sexual Activities"
shall mean and include any of the following:
(a) The fondling or other intentional touching of human
genitals, pubic region, buttocks, anus, or female breasts; or
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(b) Sex acts, normal or perverted, actual or simulated,
including intercourse, oral copulation, or sodomy; or
(c) Masturbation, actual or simulated; or
(d) Human genitals in a state of sexual stimulation,
arousal or tumescence; or
(e) Excretory functions as part of or in connection with
any of the activities set forth in subdivisions 1 through
4 of this subsection.
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:
(a) The sale, lease or sublease of the business; or
(b) The transfer of securities which constitute a
controlling interest in the business, whether by sale,
exchange, or similar means; or
(c) The establishment of a trust, gift or other similar legal
device which transfers ownership or control of the business.
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.
VIEWING BOOTH. ''Viewing Booth" shall mean any portion of an
Adult Business which portion is:
(a) Partially enclosed; and
(b) Has a floor area of less than one hundred fifty (150)
square feet; and
(c) Is designed for viewing films, motion pictures, laser
disks, compact disks, digital videos or other digital
recordings, holograms or other electronically generated
images or devices, 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."
Section 28.20 Prohibition
(a) A Person shall not use any premises for an Adult
Business or Establishment 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 permitted in this Section, and
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then only as specified in this Section; and subject to all other
applicable regulations enumerated 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.
(c) No Person shall use any premises for a Sexual
Encounter Establishment or operate a Sexual Encounter
Establishment in any zoning district of the City.
(d) All Adult Businesses providing live entertainment shall
comply with all requirements set forth in Chapter 2A,
Sections 2A.2 (Prohibitions) and 2A.3 (Locational
Regulations) of the Gilroy City Code.
Section 28.30 Locational Regulations
(a) No Person shall Establish or cause or permit to be
Established an Adult Business premises within 1,000 feet of
another Adult Business premises, within one thousand
(1,000) fee of any School, Public Park or Recreation Area,
Public Building with Programs for Minors, or within one
thousand (1,000) feet of any Residential Zone or Religious
Institution.
(b) Any Adult Business lawfully established and lawfully
operating under the Zoning Ordinance and the City Code is
not in violation of these regulations by the subsequent
establishment of a School, Public Park or Recreation Area,
Public Building with Programs for Minors, Residential Zone,
or Religious Institution 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 application for a Use Permit is
submitted after a Use Permit has expired or has been
revoked.
Section 28.40 Measurement of Distance
(a) 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
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second Adult Business premises. The distance 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.
Section 28.50 Use Permits
Section 28.51 Use Permit--Requirement
(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) It is the burden of the applicant to supply evidence to
justify the grant of a Use Permit.
(d) Any Person desiring to operate an Adult Business
within the City shall file with the Planning Division a Use
Permit application on a standard application form supplied
by the Planning Division, and, in addition, provide the
information and documents required pursuant to Section
28.60.
(e) 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.
Section 28.52 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.
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(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.
(e) If the applicant is an individual, the application shall
list his or her legal name, and any aliases.
(f) If the applicant is a partnership, the application shall
list the full and complete name of the partnership, the legal
names of all partners, and all aliases used.
(g) If the applicant is a corporation, the application 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).
(h) The application shall state whether, preceding the
date of application, the applicant or any of the entities or
individuals listed pursuant to subparagraphs (a) through (g)
of this subsection, has:
(i) Had a previous Use Permit under this Section
revoked and if so, the date of such revocation; and
(ii) 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.
(k) The application shall include a detailed description of
all proposed uses using the definitions contained in Section
28.10 wherever applicable.
(I) The application shall include a statement that the
locational regulations of Section 28.30 have been satisfied
using the method of measurement described in Section
28.40.
(m) The application shall include accurately scaled plot
plans indicating the structure in which the Adult Business is
to be conducted, identifying and locating all land uses and
property lines within a radius of one thousand two hundred
fifty (1,250) feet of the structure, indicating all structures
(existing and proposed), parking areas, landscaping, walls,
driveways and curb-cuts, signs, and topographical and
features. The application shall also include a floor plan and
any other pertinent information, including the location of
viewing booths (if applicable), necessary to make a permit
determination under this Section and Chapter 2A of the
Gilroy City Code.
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(n) 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.
Section 28.53 Use Permit--Application Fee
(a) The City Council, by resolution, shall set a reasonable
non-refundable 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.
Section 28.54 Use Permit --Time to Grant or Deny
(a) Within thirty (30) days from the date the application
for a Use Permit for an Adult Business is date-stamped
received at the Planning Division, the Planning Division
Manager 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 the application is submitted to the
Planning Division, the application 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 determined or deemed to be complete in all
cases except where a negative declaration or Environmental
Impact Report is required under the California Environmental
Quality Act ("CEQA") and/or the CEQA Guidelines, and its
processing cannot be completed within the above time limit.
In such cases, the application shall be diligently processed
where feasible to do so and in compliance with the timelines
set forth in CEQA or the CEQA Guidelines.
(c) 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
issuance of a Use Permit shall be completed within the time
limits for Planning Commission action provided in this
Section.
Section 28.55 Use Permit -- Development and Performance
Standards
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(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) All 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.
(3) All 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 discernible 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 the Section.
(6) An on-site security program, including required
interior and exterior lighting plans, shall be prepared and
implemented. The security program shall include the
following:
(7) The presence of an on-site manager during all
business hours.
(8) All 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 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 one hundred (100) feet from any entrance
to the Adult Business.
(9) 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
maintained horizontal illumination of not less than two (2)
foot candles of light at the floor.
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(10) All exterior areas of Adult Businesses,
including buildings, landscaping and parking areas, shall be
maintained in a clean and orderly manner.
(11) 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.
Section 28.56 Use Permit--Denial
(a) The Planning Commission shall deny the application for a
Use Permit for any of the following reasons:
(b) The application does not meet the standards set forth
in Section 50.32.
(c) 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.
(d) 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.
(e) The premises to be used for the Adult Business have
not been approved as being in compliance with health, fire
and building codes by the department or agency responsible
under law for investigating said compliance.
(f) The required application or permit fees have not been
paid.
(g) 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.
(h) The granting of the application would violate a City or
County, State or Federal statute, ordinance, regulation or
court order.
(I) The applicant has had a Use Permit under this
Section, or an Adult Business Permit revoked within the
preceding twelve (12) months.
0> The proposed use does not conform to the
requirements of the Zoning Ordinance and provisions of the
Gilroy City Code.
(k) The applicant has applied for a Use Permit for a
particular location within a period of twelve (12) months from
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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.
Section 28.57 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.
Section 28.58 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 non-refundable application fee.
A Use Permit shall remain valid pending the Planning
Commission's decision if the Permitee has timely filed a
complete 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
Division, the Planning Division Manager 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 Division, 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 declaration or Environmental Impact
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Report is required under the California Environmental
Quality Act ("CEQA") and/or the CEQA Guidelines, and its
processing cannot be completed within the above time limit.
In such cases, the application shall be diligently processed
where feasible to do so and in compliance with the timelines
set forth in CEQA or the CEQA Guidelines. 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.
Section 28.59 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 Planning Division Manager 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 available 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 the 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 Permittee'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:
(e) The use for which the Use Permit was granted is
being exercised in violation of any of the provisions of this
Section.
(f) The use for which the Use Permit was granted is
being exercised contrary to the terms or conditions of such
permit.
(g) 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.
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(h) The use for which the Use Permit was granted is
being exercised so as to be detrimental to the public health
and safety.
(i) The use for which the Use Permit was granted is
being exercised so as to constitute a nuisance.
0) The use for which the Use Permit was granted has
ceased to exist for one (1) year or more.
(k) 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.
(I) 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.
Section 28.60 Appeal
(a) Within ten (10) days after the decision of the Planning
Commission on a Use Permit, the Planning Division
Manager 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
appellant if different from the applicant.
Section 28.70 Judicial Review
(a) 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
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Code of Civil Procedure Section 1094.6 setting a time limit
for seeking review of administrative decisions that are
subject to review under Code of Civil Procedure Section
1094.5.
Section 28.80 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.
Section 28.90 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 28.95 Severability
If any section, subsection, subdivision, sentence, clause, phrase or
word of Ordinance No. 2010-07, establishing this Section 28, is for
any reason held to be invalid or unconstitutional by a court of
competent jurisdiction, such decision shall not affect the validity of
the remaining portions of Ordinance No. 2010- 07, establishing this
Section 28. The City Council hereby declares that it would have
passed and adopted Ordinance No. 2010-07, establishing this
Section 28, and each and all provisions hereof, irrespective of the
fact that one or more provisions may be declared invalid or
unconstitutional.
SECTION II
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
jurisdiction, 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
provision may be declared invalid or unconstitutional.
1111
1111
1111
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SECTION III
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 prescribed by law.
PASSED AND ADOPTED this 3rd day of May, 2010, by the following vote:
AYES: COUNCILMEMBERS:
ARELLANO, BRACCO,
DILLON, GARTMAN, TUCKER,
WOODWARD and PINHEIRO
NOES: COUNCILMEMBERS:
NONE
ABSENT: COUNCILMEMBERS:
NONE
APPROVED:
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I, SHA WNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the
attached Ordinance No. 2010-07 is an original ordinance, or true and correct copy of a City
ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council
held on the 3rd day of May, 2010, 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 6th day of May, 2010.
hawna Freels, C
City Clerk of the Ci
(Seal)