It is the purpose and intent of this chapter to provide for the reasonable and uniform regulation of adult businesses in the city. It is recognized that adult businesses have a serious deleterious effect upon adjacent areas, as well as the areas in which they are located. It is therefore the purpose of this chapter to establish criteria and standards for the establishment and conduct of adult businesses which will protect the public health, safety and welfare, preserve locally recognized values of community appearance, minimize the potential for nuisances related to the operation of adult businesses, and maintain local property values.

It is the purpose and intent of this chapter to establish proper regulations and to provide for a reasonable number of approximately located sites for adult businesses within the city, based upon the following findings:

A.

The city council has reviewed the detailed studies, reports and letters prepared by other jurisdictions and its own staff with respect to the detrimental social, health and economic effects on persons and properties surrounding adult businesses. These studies included Upland, California (1992); Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont ,Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977); state of Minnesota, Attorney General Report (1989); Newport News, Virginia (1996); St Paul, Minnesota (1987); Corpus Christi, Texas (1995); and National Law Center (1995); (collectively "studies"). The studies substantiate the adverse, secondary effects of adult businesses.

B.

Based on the foregoing studies and the other evidence presented, the city council finds that:

1.

Adult businesses are linked to increases in the crime rates of those areas in which they are located and that surround them; and

2.

Both the proximity of adult businesses to sensitive land uses and the concentration of adult businesses tend to result in the blighting and downgrading of the areas in which they are located.

C.

The studies conducted in various communities in other jurisdictions have demonstrated that the proximity and concentration of adult businesses adjacent to residential, recreational, religious, educational or other adult businesses can cause other businesses and residents to move elsewhere.

D.

The studies conducted in various communities in other jurisdictions have demonstrated that adult businesses are linked to increases in the crime rates and blighting of those areas in which they are located and that surround them.

E.

The special regulation of adult businesses is necessary to ensure that their adverse secondary effects will not contribute to an increase in the crime rates or the blighting or downgrading of the areas in which they are located or surrounding areas. The need for the special regulation is based on the recognition that adult businesses have serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances or located in direct proximity with sensitive uses such as residential zones and uses, parks schools, churches or day care centers, thereby having a deleterious effect upon the adjacent areas.

F.

It is the purpose and intent of these special regulations to prevent the concentration or location of adult businesses in a manner that would create such adverse secondary effects. Thus, in order to protect and preserve the public health, safety and welfare of the citizenry, especially including minors, the special regulation of the time, place and manner of the location and operation of adult businesses is necessary.

G.

The protection and preservation of the public health, safety and welfare require that certain distances be maintained between adult businesses and residential uses and zones, churches, schools, day care centers, parks and other adult businesses.

H.

The need to regulate the proximity of adult businesses to sensitive land uses such as residential, religious, educational, recreational and other adult businesses are documented in studies conducted by other jurisdictions as listed elsewhere in this section.

I.

The report of the state of Minnesota Attorney General's Working Group on the regulation of sexually oriented businesses dated June 6, 1986, indicated that:

1.

Community impacts of sexually oriented businesses are primarily a function of two variables, proximity to residential areas and concentration. Property values are directly affected within a small radius, typically one block, of the location of a sexually oriented business. Concentration may compound depression of property values and may lead to an increase of crime sufficient to change the quality of life and perceived desirability of property in a neighborhood; and

2.

The impacts of sexually oriented businesses are exacerbated when they are located near each other. When sexually oriented businesses have multiple uses (i.e. theater, bookstore, nude dancing, peep booths), one building can have the impact of several separate businesses.

J.

In consideration of the findings of the report of the state of Minnesota Attorney General's Working Group on the regulation of sexually oriented businesses dated June 6, 1986, it is appropriate to prohibit the concentration of multiple adult businesses within one building in order to mitigate the compounded adverse secondary effects associated with such concentrations as described above.

K.

The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually-oriented materials, that are protected by the First Amendment of the United States Constitution and the relevant provisions of the California State Constitution.

L.

The proposed parking standards are necessary in the interests of the public health, safety and welfare to provide for an appropriate amount of off-street parking.

M.

The city council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (e.g. Penal Code Section 313 et seq.) The city council further takes legislative notice of cases that recognize that protection of minors from sexually explicit materials is a compelling government interest, including, but not limited to, Crawfore v. Lungren (9th Cir., 1996) 96 F.3d 380, cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075.

N.

In adopting these regulations, the city council is mindful of legal principles relating to regulation of adult businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendments of the United States and California Constitutions, but instead desires to enact reasonable time, place and manner regulations that address the adverse secondary effects of adult businesses. The city council has considered decisions of the United States Supreme Court regarding adverse secondary effects and the local regulation of adult businesses, including but not limited to: Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976) (Reh. denied 429 U.S. 873); Renton v. Playtime Theaters, 475 U.S. 41 (1986) (Reh. denied 475 U.S. 1132); FW/PBS. Inc. v. Dallas, 493 U.S. 215 (1990); Barnes v. Glenn Theater, 501 U.S. 560 (1991), and City of Erie v. Paps A.M. (2000) 529 U.S. (2000 Daily Journal DAR 3255), United States Court of Appeals 9th Circuit decisions, including but not limited to: Topanga Press, et al. v. City of Los Angeles, 989 F.2d 1524 (1993); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), pet. For cert. Filed (1999); several California cases including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); City of National City v. Wiener, 3 Cal. 4th 832 (1993); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); and City of Vallejo v. Adult Books, et al., 167 Cal.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On, Inc. v. Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993) 10 F.3d 123, International Eateries v. Broward County (11th Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074.

O.

The city has conducted its own study of its land use districts and planning areas and has determined that the establishment of adult business in the M-1 and M-2 zone designations is appropriate, subject to locational and distance requirements that promote the health, safety and general welfare of the public. The city also evaluated the locational and distance regulations in this chapter for separating adult businesses from sensitive land uses, and other adult businesses, and determined the location and distance requirements are appropriate to promote the health, safety and general welfare of the public.

P.

The locational requirements do not unreasonably restrict the establishment or operation of constitutionally protected speech in the city and a sufficient reasonable number of appropriate locations for adult businesses are provided.

Q.

The city council recognizes that the standards and regulations in this chapter do not preclude reasonable alternative avenues of communication. The city council takes note of the proximity of at least five adult businesses within thirty minutes (drive time) of the city in determining that the proposed standards do not preclude reasonable alternative avenues of communication.

R.

The city council recognizes that a sufficient number of appropriate locations for establishing an adult business in the city are provided considering the city's predominant residential character (approximately fifty-nine percent is zoned for residential land use) and the fact that no formal requests to establish an adult business have been received by planning department staff.

S.

Finally, the city council also takes note of the proliferation of adult material on the Internet and its availability as an alternative avenue of communication. The city council also considers and relies on published decisions examining the proliferation of communications on the Internet. Reno v. American Civil Liberties Union (1997) 521 U.S. 844 (the principal channel through which many Americans now transmit and receive sexually explicit communication is the Internet); see also: Anheuser-Busch v. Schmoke, 101 F.3d 325, 329 (4th. Cir. 1996) (rejecting First Amendment challenge to Baltimore ordinance restricting alcohol advertisements on billboards and acknowledging that the Internet is an available channel of communication); U.S. V. Hockings, 129 F.3d 1069 (9th Cir. 1997); and U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996) (cert denied 519 U.S. 820). The emergence of the Internet provides a virtually unlimited additional source of adult oriented sexual material available to persons without regard to geographic boundaries. An adult business no longer needs to be actually physically located within a city to be available to the community.

(Ord. 2288 § 4 (part), 2005)

An "adult business" is any business where employees or patrons expose specified anatomical areas or engage in specified sexual activities, or any business which offers to its patrons services or entertainment characterized by an emphasis on matter depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas.

Adult businesses do not include bona fide medical establishments operated by properly licensed and registered medical personnel with appropriate medical credentials for the treatment of patients.

In determining whether a use is an adult business, only conduct or activities which constitute a regular and substantial course of conduct or a use which has a majority of its floor area, stock-in-trade or revenue derived from material characterized by an emphasis on matters depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas shall be considered. Isolated instances of conduct or activities described in this section as characterizing an adult business shall not be considered except where such activities, taken together, constitute a regular and substantial course of conduct. Adult businesses include, but are not limited to, the following:

A.

Adult Arcade. An "adult arcade" means any place to which the public is permitted or invited wherein coin operated or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines projections or other image producing devices are maintained to show images to five or fewer persons per machine at any one time and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.

B.

Adult Bookstore, Novelty Store, Video/DVD Store. "Adult bookstore, novelty store, video/DVD store," is an establishment which has as a substantial portion of its stock in trade, a majority of its floor area or revenue derived from and offering for sale for any form of consideration, any one or more of the following:

1.

Books, magazines, periodicals or other printed matter, photographs films motion pictures, video cassettes slides or other visual representations which are characterized by an emphasis upon the depiction or description of specified anatomical areas;

2.

Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities; or

3.

Goods which are replicas of or which simulate, specified anatomical areas, or goods which are designed to be placed on or in specified anatomical areas or to be used in conjunction with specified sexual activities to cause sexual excitement.

A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing "specified sexual activities" or "specified anatomical areas" and still be categorized as an adult bookstore adult novelty store or adult/video/DVD store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore, adult novelty store or adult/video/DVD store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

C.

Adult Cabaret. An "adult cabaret" is a bar, nightclub or similar establishment which features dancers, strippers or similar entertainers who expose specified anatomical areas of their bodies or simulate specified sexual activities.

D.

Adult Motel. An "adult motel" means a hotel, motel or similar commercial establishment which:

1.

Offer accommodations to the public for any form of consideration; provides patrons with closed circuit television transmissions films motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and has a sign visible from the public right of way which advertises the availability of this adult type of photographic reproductions, videos or films; and

2.

Offers a sleeping room for rent for a period of time that is less than ten hours; or

3.

Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours.

E.

Adult Motion Picture Theater. An "adult motion picture theater" means a commercial establishment where for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depictions or description of specified sexual activities or specified anatomical areas.

F.

Adult Tanning Salon. An "adult tanning salon" or "parlor" means a business establishment where patrons receive tanning services in groups of two or more and where patrons or employees of the establishment expose specified anatomical areas. Adult tanning salon or parlor also includes a business establishment where a patron and an employee of the establishment are nude or expose specified anatomical areas. An adult tanning salon or parlor also includes a business establishment where the employees thereof are nude or expose specified anatomical areas.

G.

Adult Theater. An "adult theater" is any place, building, enclosure, theater, concert hall auditorium or structure, partially or entirely used for live performances or presentations, which place, building, enclosure, theater, concert hall, auditorium or structure is used for presenting matter characterized by an emphasis on depicting, exposing, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein. Such place shall also include an adult theater wherein persons are regularly featured appearing in a state of nudity or giving live performances which are characterized by the exposure of specified sexual activities or by specified anatomical areas.

H.

Employee. "Employee" means a person who performs any service on the premises of an adult business on a full time, part time or contract basis whether or not the person is denominated as an employee, independent contractor, agent or otherwise and whether or not said person is paid a salary, wage or other compensation by the operator of the adult business. Employee does not include a person exclusively on the premises to conduct repair or maintenance for the premises or equipment on the premises or for the delivery of goods to the premises.

I.

Nude Model Studio. A "nude model studio" means any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be conversed with or be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons, for any form of consideration. Nude model studio shall not include any classroom of any school licensed under state law to provide art education, while such classroom is being used in a manner consistent with such state license.

J.

Sex Supermarket/Sex Mini-Mall. A "sex supermarket/sex mini-mall" means the establishment or operation of more than one type of adult business or use as defined in this chapter within the same building or properly.

K.

Sexual Encounter Center. "Sexual encounter center" means a business or commercial enterprise that as one of its primary business purposes, offers for any form of consideration:

1.

Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or

2.

Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or is semi-nude.

L.

Sexually Oriented Business. A "sexually oriented business" is any business where employees or patrons expose specified anatomical areas or engage in or simulate specified sexual activities or any business which offers to its patrons services or entertainment characterized by an emphasis on matter depicting exposing describing discussing or relating to specified sexual activities or specified anatomical areas.

(Ord. 2288 § 4 (part), 2005)

In addition to the terms defined in Section 17.60.020, the following words and phrases shall have the meaning set forth below:

A.

Appeal. Wherever reference to an appeal being filed or available to be filed, such right of appeal shall also include the right to appeal administrative determinations concerning the interpretation of this chapter made by the city manager/designee to the planning commission and city council.

B.

Establishment. An "establishment" means and includes any of the following:

1.

The opening or commencement of any adult business as a new business;

2.

The conversion of an existing business, whether or not an adult business, to any adult business;

3.

The addition of any adult business to any other existing adult business; or to another existing non adult business, with or without expansion of floor area;

4.

The relocation of any adult business; or

5.

The expansion or enlargement of the premises by ten percent or more of the existing floor area.

C.

Nudity or a State of Nudity. "Nudity" or a "state of nudity" means the showing of the human male or female genitals, buttocks, pubic area, vulva, anus, anal cleft or the female breast with less than a fully opaque covering of any part of the areola.

D.

Private Viewing Area. "Private viewing area" means an area or areas in an adult business designed to accommodate no more than five or less patrons or customers for purposes of viewing or watching a performance, picture, show, film, videotape, slide, movie or other presentation. No private viewing areas shall be established, maintained or authorized and there shall be no doors curtains, stalls or other enclosures creating a private viewing area.

E.

School. "School" means any public or private educational institution which is run by the state or a subdivision thereof or which is licensed by the state to offer preschool, elementary or secondary academic instruction, including kindergartens, elementary schools, middle or junior high schools and high schools.

F.

Semi-Nude. "Semi-nude" means the showing of the male genitals or female breast below a horizontal line across the top of the areola at its highest point or the showing of a substantial portion of the male or female buttocks. This definition shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit or other wearing apparel provided the areola is not exposed in whole or in part.

G.

Specified Criminal Act. A "specified criminal act" also means "specified criminal acts" and includes sexual crimes against children; sexual abuse; rape; or crimes connected with another adult business including, but not limited to, the distribution of obscenity; violations involving the distribution, display or sale of material harmful to minors; prostitution; or pandering. Specified criminal acts shall exclude those acts which are authorized or required to be kept confidential pursuant to Welfare and Institutions Code Sections 600-900.

(Ord. 2288 § 4 (part), 2005)

The following words and phrases when used in this title shall have the meaning set forth below:

A.

Specified Anatomical Areas. "Specified anatomical areas" include any of the following human anatomical areas:

1.

Less than completely and opaquely covered genitals, pubic regions, buttocks, anuses or female breasts below a point immediately above the top of the areola; or

2.

Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

B.

Specified Sexual Activities. "Specified sexual activities" include all of the following:

1.

The fondling or other erotic touching of the following human anatomical areas: genitals, pubic regions, buttocks, anuses or female breasts;

2.

Human sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;

3.

Human masturbation, actual or simulated;

4.

The actual or simulated infliction of pain by one human upon another or by an individual upon himself or herself for the purpose of the sexual gratification or release of either individual, as a result of flagellation, beating, striking or touching of an erogenous zone, including without limitation, the thigh, genitals, buttock, pubic region or, if such person is a female, a breast;

5.

Sexual intercourse, actual or simulated, between a human being and an animal; or

6.

Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (5), above.

(Ord. 2288 § 4 (part), 2005)

In order to operate an adult business within this city, the applicant or proprietor of the business must obtain the license required by Chapter 5.76 and any other license required by this code and an adult use planning permit as required herein. It shall be unlawful and a misdemeanor, subject to punishment in accordance with Title 1 of this code, for an owner, operator, manager or employee to operate an adult business without processing an adult use planning permit, including an interim adult use planning permit required by this chapter and any license required by Chapter 5.76 of this code. All applicants for such a permit, in addition to any application or documents required to be filed pursuant to the provisions of this title shall file a written signed and verified application on a form provided by the planning department:

A.

The name and permanent address of the applicant;

B.

The name and business address of the applicant. If the applicant is a corporation the applicant shall provide the name of the state of incorporation, the name shall be exactly as set forth in its chapters of incorporation and the applicant shall show the name and address each of the officers, directors and controlling stockholders owning at least fifty percent of the stock of the corporation and/or each officer, director and controlling stockholder with day to day management of the business. If the applicant is a partnership, the application shall show the name and address of each of the partners including limited partners with at least a fifty percent ownership in the business or having day-to-day management responsibilities in the business;

C.

Location and address of the proposed adult business;

D.

Legal description of the subject property;

E.

A detailed description of the manner of providing proposed entertainment, including type of entertainment and the number of persons engaged in the entertainment;

F.

Proposed hours of operation;

G.

A floor plan showing where the specific entertainment uses are proposed to be conducted within the building;

H.

A site plan;

I.

The name or names of the person or persons having responsibility for the management or supervision of the applicant's business and of any entertainment;

J.

Statement of the nature and character of the applicant's business if any, to be carried on in conjunction with such entertainment.

K.

A signed and notarized authorization and waiver authorizing the chief of police, the Montebello police department or any law enforcement body or authorized law enforcement contractor to verity all of the information on the application.

L.

A statement in writing, signed and dated by the applicant, that he or she certifies under penalty of perjury that all information contained in the application is true and correct.

Within two business days of the receipt of the application, the director of planning, or his designee shall determine whether it is complete and contains all information required by this section. If the application is incomplete, the director of planning shall deny the application and immediately inform the applicant in writing of the items needed to complete the application.

Notwithstanding the fact that an application filed hereunder may be a "public record under Government Code Section 6250 et seq., certain portions of such application contain information vital to the effective administration and enforcement of the licensing and/or permit scheme established herein which is personal, private, confidential or the disclosure of which could expose the applicant to a risk of harm. Such information includes, but is not limited to, the applicant's residence address and telephone number, the applicant's date of birth and/or age, the applicant's driver's license and/or Social Security Number, and/or personal financial data. The city council in adopting the application and licensing and/or permit system set forth herein has determined in accordance with Government Code Section 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy confidentiality or security interests are protected. The city clerk shall cause to be obliterated from any copy of a completed license application made available to any member of the public, the information set forth above.

(Ord. 2288 § 4 (part), 2005)

The community development director shall refer the completed permit application to the chief of police to investigate and verify the information contained in the application. The chief of police may refer the application to any law enforcement body or authorized law enforcement contractor to assist in this determination.

A.

After the investigation, including obtaining the information contained in the application, the chief of police shall issue a report to the director of planning the planning commission or city council as appropriate, and the community development director, the planning commission or city council, as appropriate, shall approve the adult use planning permit unless one or more of the following findings are true:

1.

That the applicant, his or her employee, agent, partner, director, officer, controlling stock holder or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit or in any report or record required to be filed with any city or county agency or department;

2.

That on the date that the business for which a permit is required herein commences or thereafter, there will be no responsible person on the premises to act as manager at all times during which the adult business is open;

3.

That an applicant is less than eighteen years of age;

4.

That an applicant has been convicted of a specific criminal act for which:

a.

Less than eight years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a misdemeanor offense for the specified criminal acts which are sexual crimes against children; sexual abuse; rape; or crimes connected with another adult business including, but not limited to, distribution of obscenity; distribution, display or sale of material harmful to minors; prostitution; or pandering,

b.

Less than eight years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a felony offense; for the specified criminal acts which are sexual crimes against children; sexual abuse; rape; or crimes connected with another adult business including, but not limited to, distribution of obscenity; distribution, display or sale of material harmful to minors; prostitution; or pandering,

c.

Less than eight years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the convictions are of two or more misdemeanors for the specified criminal acts which are sexual crimes against children; sexual abuse; rape; or crimes connected with another adult business including, but not limited to, distribution of obscenity; distribution, display or sale of material harmful to minors; prostitution; or pandering; conviction of any such offense occurring within twenty-four months prior to application,

d.

The fact that a conviction is being appealed shall have no effect on disqualification of the applicant,

e.

An applicant who has been convicted of any of the above described specified criminal acts may qualify to own, operate or manage an adult business only when the required time period has elapsed;

5.

That the application is incomplete.

B.

In the event the information requested pursuant to this section is not immediately available, the chief of police shall, if the application otherwise meets the requirements of this code and the investigation conducted reveals none of the factors set forth in subsection A of this section report thereon. Whereupon, the director of planning, or designee thereof, shall issue an interim adult use planning permit within ten days of the receipt of the application. Should the background information obtained by the chief of police materially vary from that on the application, such variance shall be cause to revoke the interim adult use permit and any other permit or licenses upon which such information is necessary. Any permit issued prior to the city receiving the background information required shall state clearly on its face that the permit is subject to suspension or revocation pursuant to this code.

C.

The city's decision to grant or deny the permit shall not include information authorized or required to be kept confidential pursuant to Welfare and Institutions Code Sections 600 to 900.

(Ord. 2288 § 4 (part), 2005)

Any adult use planning permit granted or approved hereunder shall be granted or approved with the city and its city council and planning commission retaining and reserving the right and jurisdiction to review and modify the adult use planning permit, including the conditions of approval, based on changed circumstances. Changed circumstances include but are not limited to the modification of the business, the change in scope emphasis, size or nature of the business, and the expansion, alteration or change of use. The reservation of the right to review any permit granted or approval hereunder by the city, city council and planning commission is in addition to, and not in lieu of, the right of the city, city council and planning commission to review and revoke or modify any permit granted or approved hereunder for any violations of the conditions imposed on such permit.

(Ord. 2288 § 4 (part), 2005)

A.

Interim Adult Use Planning Permit. In order to avoid undue delay or suppression of any protected expression, the director of planning shall make an initial determination of the required information contained in the application to process an adult use planning permit within five days of the date of filing the complete application. If the application is sufficient to issue an interim adult use planning permit such shall be issued by the director of planning within ten days of the date the application was deemed complete. A sufficient application shall include, but not be limited to, the applicant's meeting the requirements to be issued an adult business license required by Chapter 5.76 of this code and the proposed business must be located in the M-1 or M-2 zoning districts and subject to the locational and setback requirements of this chapter. The granting of the interim adult use planning permit by the director of planning is without prejudice to and does not preclude the denial of the final adult use planning permit application filed by the applicant. The interim adult use planning permit shall terminate upon the planning commission taking action on the final adult use planning permit. No right to operate beyond the termination of the interim adult use planning permit shall vest in the applicant if the applicant is unable or unwilling to obtain the adult business license required by Chapter 5.76 of this code and the final adult use planning permit required by this chapter.

B.

Final Adult Use Planning Permit. The planning commission shall approve or disapprove the completed adult use planning permit application within ninety days of its acceptance as complete by the director of planning or designee. The time limit established by this section may be extended once for a period not to exceed ninety days upon consent of the director of planning and the applicant. The application shall be processed and noticed in the same manner as conditional use permits are processed and noticed under state law.

1.

To approve the final adult use planning permit, the planning commission, or city council on appeal, must first make the following findings:

a.

That all applicable filing fees have been paid;

b.

That the applicant is not overdue in payment to the city of any taxes fees, fines or penalties assessed against or imposed in relation to an existing or former adult business;

c.

That the building, structure, equipment and location used by the business for which an adult business license is required complies with the requirements and standards of the health, building, zoning, fire and safety laws of the state of California, the Montebello fire department, Los Angeles County health services department and the city;

d.

That the conduct of the adult business as proposed by the applicant, if permitted, will comply with all applicable laws including but not limited to, the city's building, zoning, fire and health and safety regulations;

e.

That the city currently has no evidence demonstrating that the applicant has knowingly made any false, misleading or fraudulent statement of material facts in the adult use planning permit application or any other document required by the city in conjunction therewith;

f.

That the use is permitted in the zone, district or area in which it is proposed to be located and is in conformity with the applicable development standards of that zone, district or area, including the provision of required parking;

g.

That the use is in conformity with the locational criteria set forth in this chapter;

h.

That the design of the site and the proposed improvements are in compliance with any applicable precise plan of design approved for the site;

i.

That the proposed conduct of the adult business is in compliance with all applicable performance standards of Section 17.60.140 of this chapter.

2.

In the event the planning commission, or the city council on appeal, denies the final adult use planning permit application, the business shall cease its operations as an adult business and no further activities regulated by this chapter or Chapter 5.76 of this code shall be conducted on the premises unless and until an adult use planning permit and all licenses required by this code are obtained. The interim adult use planning permit shall also terminate on the date the adult use planning permit application is denied.

3.

If the permit requested is for a development project for construction or reconstruction subject to the Permit Streamlining Act (Government Code Section 65920 et seq.), the time limits provided in the Permit Streamlining Act shall apply to the development project for construction. The adult use planning permit's approval or denial shall be conditioned upon operation within the building to be constructed or reconstructed.

4.

Upon the filing of an appeal, in accordance with Section 5.76.040(E) of this code, the city council or a designated hearing officer shall render its decision on the appeal within forty-five days.

C.

The decision of the city council or hearing officer concerning the appeal of a denial, denial of renewal, suspension or revocation of a permit shall be final. The applicant or permittee may seek prompt judicial review of such administrative action in a court of competent jurisdiction as provided by law pursuant to California Code of Civil Procedure Section 1094.5 et seq. The city shall make all reasonable efforts to expedite judicial review in accordance with Code of Civil Procedure Section 1094.8.

(Ord. 2288 § 4 (part), 2005)

All design and performance standards set forth in this chapter are deemed to be necessary for the protection of the public health, safety and welfare and shall be applicable and govern all existing and proposed adult businesses immediately upon adoption and passage of this chapter.

In the event that there is any adult business lawfully in existence prior to the adoption of this chapter and is not in compliance with the design and performance standards of this chapter, any such adult business shall conform to all design and performance standards within six months of the effective date of this chapter.

Notwithstanding anything to the contrary contained in this section, the amortization period for a nonconforming use that is governed by consent decree or other court action shall have the amortization period established by such consent decree or court actions.

(Ord. 2288 § 4 (part), 2005)

A.

An application for extension of the amortization period for an adult business which is a nonconforming use shall be made as provided in subsection (C) and (D) of this section.

B.

The owner of the property on which an adult business is located or the owner of the adult business who desires to extend the amortization period must apply for approval of an extension not later than six months prior to expiration of the amortization period, unless the director of planning determines that good cause is shown for late filing of the application. Such application shall be made in writing on a form as prescribed by the director of planning and shall be accompanied by the required fee as established by resolution of the city council. The party requesting the extension of the amortization period shall bear the burden of proof in establishing that the amortization period established by Section 17.60.090 is unreasonable and that the requested extension is a reasonable amortization period for the owner to receive a fair rate of return on the investment in the business. The party applying for the extension shall furthermore be required in order to meet its burden of proof to submit the documentation set forth in this section.

C.

Not later than thirty days after submittal of an application to extend the amortization period, the director of planning shall notify the applicant, in writing, if the application is not complete. A complete application shall include:

1.

The applicant's signature;

2.

A written request for an extension of the amortization period which shall include information relevant to the factors listed in subsection F of this section and shall identify the term of the requested extension;

3.

The required fees;

4.

A mailing list and a set of gummed labels with the names, addresses and tax assessor parcel numbers of all owners of real property within a radius of three hundred feet from the external boundaries of the property on which the adult business is located; and

5.

A tax assessor's parcel map identifying the properties to be notified within the three hundred foot radius.

If the application is not complete, the director of planning shall specify in writing those parts which are incomplete and shall identify the manner by which the application can be made complete. If a written determination is not provided to the applicant within thirty calendar days after it is submitted, the application shall be deemed complete.

D.

The planning commission shall hold a noticed public hearing on the request for an extension,

E.

Reserved.

F.

Criteria and Findings. In determining whether to grant an extension of the amortization period for an adult business which is a nonconforming use, and in determining the appropriate length of such an extension, the planning commission shall consider the amount of investment in the business, the opportunities for relocation to a legally permissible site, the costs of relocation, the effects of the business on the surrounding area, and the following additional factors:

1.

The present actual and deprecated value of business improvements;

2.

The applicable Internal Revenue Service depreciation schedule or functional nonconfidential equivalents;

3.

The remaining useful life of the business improvements;

4.

The remaining lease term;

5.

The ability of the business and/or land owner to change the use to a conforming use; and

6.

The date upon which the property owner and/or business operator received notice of the nonconforming status of the adult business and the amortization requirements.

G.

The planning commission, or city council or hearing officer on appeal shall receive and consider evidence presented by the applicant and any other persons, and shall make findings that the amortization period it establishes is reasonable in view of the evidence and the criteria set forth in this section.

(Ord. 2288 § 4 (part), 2005)

A.

Any nonconforming building may be continued and maintained, except as provided in this chapter, provided there are no structural alterations, except as provided in this chapter.

B.

Any nonconforming use may be continued, except as provided in this chapter, provided that the use shall not be increased, enlarged extended or altered, except as provided in this chapter.

(Ord. 2288 § 4 (part), 2005)

The following provisions shall apply to nonconforming adult businesses:

A.

The owner of any adult business which is a nonconforming use may apply for extension of the amortization period, pursuant to Section 17.60.100 of this chapter. Such application shall be made prior to the expiration of the amortization period unless the reviewing authority determines that good cause is shown for late filing of the application.

B.

Upon the conclusion of the amortization period, any adult business which is a nonconforming use shall cease all business operations and all signs, advertising and displays relating to said business shall be removed within thirty days.

(Ord. 2288 § 4 (part), 2005)

Adult businesses shall only be permitted to be established in the M-1 and M-2 zone designations and shall be subject to the location and design standards specified by this chapter and the requirement of an adult use planning permit as otherwise provided in this chapter and code.

(Ord. 2288 § 4 (part), 2005)

A.

An adult business shall not be established or located within five hundred feet of:

1.

Any residential zone, residential land use district or property used for residential purposes, including mobilehome parks and trailer parks, within the city;

2.

Any church, chapel or similar place of worship or property zoned, planned or otherwise designated for such use by city action;

3.

Any funeral parlor, mortuary, cemetery or similar facility, or property zoned, planned or otherwise designated for such use by city action;

4.

Any school, nursery, day care center, park or playground or property zoned, planned or otherwise designated for such use by city action;

5.

Reserved;

6.

Any other recreational facility where minors congregate or property zoned, planned or otherwise designated for such use by city action; or

B.

An adult business shall not be established or located within five hundred feet of an existing adult business. If two or more existing adult businesses are located in closer proximity to each other than five hundred feet, then in determining which of the businesses is or are nonconforming, preference shall be given in the order of the respective lengths of continuous uninterrupted operation of the businesses.

C.

For the purposes of this section, all distances shall be measured in a straight line, without regard to intervening structures, from the nearest point of the building or structure in which the adult business is or will be located to the nearest property line of any land use, land use district or zone described in subsection A of this section, or to the nearest point of the building or structure in which an existing adult business described in subsection B of this section, is located.

D.

No advertising sign or structure, advertisement, display or other promotional material depicting specified anatomical areas or specified sexual activities or displaying instruments, devices or paraphernalia designed for use in connection with specific sexual activities, shall be shown or exhibited so as to be visible from any exterior area.

E.

All building openings, entries and windows shall be located, covered or screened to prevent viewing the interior from any exterior area.

F.

No loudspeaker or sound equipment audible to persons in any public exterior area shall be used in connection with an adult business, and the business shall be so conducted that sounds associated with the business are not emitted into any public exterior area.

G.

The establishment of an adult business shall comply with the applicable site development standards including parking of the zone, district or area in which the adult business is located, the building code, fire code and the health and safety code of the city. An adult business shall comply with the applicable city permit and inspection procedures. In addition, adult businesses shall comply with the following performance standards:

1.

Each adult business shall have a business entrance separate from any other non-adult business located in the same building.

2.

No adult business shall be operated in any manner that permits the observation by the public of any material depicting, describing or relating to specified sexual activities or specified anatomical areas from any public way or from any location beyond the walls of the building or portion thereof in which the adult business is conducted.

3.

The building entrance to the adult business shall be clearly and legibly posted with a notice indicating that minors are precluded from entering the premises.

4.

Each adult business shall be provided with a manager's station for the purpose of supervising activities within the business. A manager shall be on duty on the premises during all times that the adult business is open to the public.

5.

Any viewing room shall be visible from the manager's station of the adult business, and visibility of the entire viewing room from the manager's station shall be neither obscured nor obstructed by any curtain, door, wall or other structure.

6.

All exterior areas of adult businesses, including buildings, landscaping and parking areas, shall be maintained in a clean and orderly manner free of trash, weeds and debris.

7.

The maximum occupancy load, fire exits, fire lanes and fire suppression equipment shall be regulated, designed and provided in accordance with the regulations and standards of the county fire department and the city's building department.

9.

Off-street parking shall be provided for the adult business as specified for the zone, district or area in which the business is located in accordance with the parking provisions of this code and as follows:

Adult Theater, Adult Cabaret or Adult Motion Picture Arcade. One parking space shall be provided for every two seats in the viewing room, or one parking space shall be provided for every two occupants per the allowable occupant load as established by the chief building official and/or the fire marshal, whichever standard is greater. In addition, one parking space shall be provided for each employee on the maximum shift.

10.

Any person who operates or causes to be operated an adult business, other than an adult motel and regardless of whether or not an adult business license has been issued to said business under this code, which exhibits on the premises in a viewing room or viewing booth of less than one hundred fifty square feet of floor space, a film, video cassette or other video reproduction which depicts specified sexual activities or specified anatomical areas shall comply with the following requirements:

a.

Upon application for an adult business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations, the location of all overhead lighting fixtures, and designating any portion of the premises in which patrons shall not be permitted. A manager's station(s) shall not exceed thirty-two square feet of floor area.

b.

No alteration in the configuration or location of a manager's station shall be made without the prior written approval of the director of planning.

c.

It is the duty of the permit-holder to ensure that at least one employee is on duty and situated at each manager's station at all times that any patron is present inside the premises.

d.

The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. Restrooms shall not contain video reproduction equipment. If the premises have two or more manager's stations designed, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection shall be by direct line of sight from the manager's station.

e.

It shall be the duty of the permit-holder and any employees present on the premises to insure that the view area specified in subsection (G)(10)(d) of this section remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to insure that no patron is permitted access to any area of the premises which has been designed as an area in which patrons shall not be permitted in the application filed pursuant to this chapter.

11.

An on-site security program shall be prepared and implemented including the following items:

a.

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 an average maintained horizontal illumination of ten foot candle of light on the parking surface and/or walkway. This required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the adult business for the personal safety of patrons and employees and to reduce the incidence of vandalism and theft. The lighting shall be shown on the required site or plot plan and shall be subject to review for compliance through the design review process by the director of planning and the chief of police.

b.

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 five foot candles of light.

c.

For adult businesses, the use of uniformed private patrol personnel, who are regularly employed by a private patrol, qualified under Chapter 5.04 of the Montebello Municipal Code, and licensed to do business in the city, shall be required in accordance with the following schedule:

d.

The private patrol officers must be licensed, must be in an easily recognizable complete private patrol officer's uniform which is in contrast to the uniform of the officers of the Montebello police department.

e.

The city manager may, upon consideration of an application for such permits, require a greater number of private patrol officers or such patrol officers may be waived, if the city manager finds that such patrol officers are not required to preserve the public peace, health and safety.

12.

Adult Motion Picture Theater.

a.

A manager's station shall be located near the main entrance and the station shall be provided with an unobstructed view of all motion picture private viewing areas.

b.

No adult motion picture arcade shall be maintained or operated unless the complete interior of the adult motion picture theater is visible upon entrance to such adult motion picture theater. No partially or fully enclosed booths or partially or fully concealed booths shall be maintained.

c.

Maximum Number of Devices. No person shall operate an adult motion picture theater in which the number of image producing devices exceeds the maximum occupancy load permitted in any room or partitioned portion of a room in which an image producing device is located.

13.

Adult Hotel/Motel.

a.

Evidence that a sleeping room in a hotel, motel or a similar commercial establishment has been rented or subrented and vacated two or more times in a period of time that is less than ten hours on a recurring basis creates a rebuttable presumption that the establishment is an adult hotel/motel as that term is defined in this chapter.

b.

A person is in violation of the provisions of this chapter if such person rents or sub-rents a sleeping room at a location without an adult business license and an adult use planning permit to a person or persons and within ten hours thereafter rents or sub-rents the same room to another person(s) or sub-rents the same room to the prior renter.

(Ord. 2288 § 4 (part), 2005)

For purposes of this section, "couch dancing" or "straddle dancing" shall be defined as an employee of the adult business intentionally touching any patron while engaged in the display or exposure of any specified anatomical area, or while simulating any specified sexual activity.

A.

No person shall operate or cause to be operated an adult business, regardless of whether or not a permit has been issued under this code knowingly or with reason to know, permitting, suffering or allowing any employee:

1.

To engage in a couch dance or straddle dance with a patron at the business;

2.

To contract or otherwise agree with a patron to engage in a couch dance or straddle dance with a person at the business or property;

3.

To intentionally touch any patron at an adult business while engaged in the display or exposure of a specified anatomical area or engaged in or simulating a specified sexual activity;

4.

To voluntarily be within six feet of any patron while engaged in the display or exposure of any specified anatomical area or engaged in or simulating a specified sexual activity.

B.

No employee of an adult business shall:

1.

Engage in a couch dance or straddle dance with a patron at the business;

2.

Contract or otherwise agree to engage in a couch dance or straddle dance with a patron at the business;

3.

Engage in the display or exposure of any specified anatomical area or engage in or simulate a specified sexual activity while intentionally touching a patron at the adult business;

4.

Engage in the display or exposure of any specified anatomical area or engage in or simulate a specified sexual activity closer than six feet from any patron.

C.

No person at any adult business, regardless of whether or not said business is permitted under this code, shall intentionally touch an employee who is displaying or exposing any specified anatomical area or engaging in or simulating a specified sexual activity at the adult business.

D.

No person at any adult business, regardless of whether or not said business is permitted under this code, shall engage in a couch dance or straddle dance with an employee at the business who is displaying or exposing any specified anatomical area or engaging in or simulating a specified sexual activity.

E.

No employee of an adult business, regardless of whether or not a permit has been issued for said business under this chapter, shall engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service or solicit a service between the hours of two a.m. and nine a.m. of any particular day.

(Ord. 2288 § 4 (part), 2005)