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CITY COUNCIL AGENDA ITEM NO. 14

Meeting Date: July 26, 2005

Subject/Title: Zoning Text Amendment (ZTA 05-01), Adopting New Locational and Operating Requirements for Adult Oriented Businesses and Adult Service Providers

Prepared by: Mike Leana, Chief of Planning

Submitted by: Howard Sword, Community Development Director

RECOMMENDATION
The Planning Commission and staff are recommending that the City Council introduce and waive the first reading of an Ordinance that replaces existing Chapter 17.690 of the Municipal Code with a new Chapter 17.690 that will regulate the location and operation of adult businesses within the City of Brentwood.

PREVIOUS ACTION
The existing Chapter 17.690 was adopted over 20 years ago.

BACKGROUND
At its meeting of March 1, 2005, the Planning Commission considered this request. In a 3-2 vote, the Commission recommended the ordinance be forwarded to the City Council for approval establishing a minimum 1,000 foot separation between adult entertainment businesses and “sensitive” land uses and that the proposed ordinance be reviewed by the Interim City Attorney and the Chief of Police prior to forwarding it on to the Council for consideration. Police Department representatives have previously been involved in meetings where the ordinance has been reviewed and provided comments on its contents.

The revised ordinance before the Council incorporates the recommendation of the Planning Commission and has been reviewed with minor changes incorporated by the Interim City Attorney.

ANALYSIS
Existing Chapter 17.690 of the Zoning Ordinance regulates adult businesses by allowing them with a Conditional Use Permit in the C-3 (Thoroughfare Commercial) Zoning District. Although we have no existing uses that would be classified as adult businesses, as the City grows and matures, it is likely that this type of business may desire to locate in Brentwood. Over the past 12 months we have had several inquiries with respect to the applicable zoning for adult business uses. It is staff’s intention to establish a sufficient number of potential locations for adult businesses to operate without negatively impacting their rights under the Constitution, while insuring the least possible negative impact on our community in order to preserve and protect the same Constitutional rights held by the remainder of our citizens.

Staff has identified six separate C-3 zoning districts within the City that adult businesses are currently conditionally permitted. Four of them are adjacent to existing or developing residential areas and the other two are adjacent to the City’s Historic Downtown. Staff does not feel it would be appropriate for an adult business to be considered in any of these six areas.

In preparing the proposed new ordinance, staff relied upon a “model” ordinance prepared by the League of California Cities and considered a minimum separation between other adult businesses or between an adult business and any “sensitive” land use (identified as any private or public school, day care facility, church, park, playground, library, youth-oriented establishment, or property zoned for residential uses, open space, public or semi-public facilities.) The minimum separation also applies to other adult business locations and sensitive land uses in adjacent communities.

Initially, staff had recommended a distance separation of 500 feet in order to provide a sufficient number of potential locations, but had eliminated several of these potential sites due to the preferred land use contemplated for the site. The Planning Commission prefers and recommends a minimum 1,000 foot separation. After conferring with the Interim City Attorney on the potential development within the areas remaining that adhere to the 1,000 foot separation, staff is satisfied that the six areas identified that adhere to the locational criteria (portions of Planned Developments No. 6, 36, 38, 51, 52 and 53) provide a “sufficient number” of potential locations for adult entertainment businesses. With these six areas we are effectively replacing the six current areas with six new areas. The locations are along the Highway 4 Bypass corridor, essentially in the NW quadrant of the City, with one location in the Lone Tree triangle, along the east side of Empire Avenue. In a survey of surrounding cities, the separation requirement from sensitive land uses varied from a low of 300 feet (Oakley) to a high of 1500 feet (Antioch) with several cities utilizing a varied distance, depending on whether the use was a residential zone, park or school.

Establishing these six zoning district locations is the initial step; a conditional use permit and public hearing before the Planning Commission with standard notification procedures to surrounding property owners will be required for every adult business use request, and the locational criteria will need to be adhered to at the time of application submittal.

FISCAL IMPACT
The processing fee for a Conditional Use Permit is intended to cover the cost of processing an adult entertainment business application. There may be additional costs associated with the monitoring of said uses once they open for business.

Attachments:
Draft Ordinance replacing Chapter 17.690
Planning Commission Staff Report, Minutes and Resolution Recommending Approval of the
Ordinance
Negative Declaration
Map of Potential Locations Adhering to the 1000’ Separation Requirement

ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING TITLE 17, CHAPTER 17.690 OF THE BRENTWOOD MUNICIPAL CODE RELATED TO ADULT ORIENTED BUSINESSES AND ADULT SERVICE PROVIDERS.

The Council of the City of Brentwood does ordain as follows:

Section 1.

FINDINGS. The City Council of the City of Brentwood hereby finds that:
(This section 1 shall not be published.)

A. The City Council, in adopting this ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of Adult-Oriented Businesses in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977). The City Council finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of Adult-Oriented Businesses, and more specifically finds that these studies provide convincing evidence that:

1. Adult-Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas.

2. Both the proximity of Adult-Oriented Businesses to sensitive land uses and the concentration of Adult-Oriented Businesses tend to result in blight and deterioration of the areas in which they are located.

3. The proximity and concentration of Adult-Oriented Businesses adjacent to residential, recreational, religious, and educational uses, as well as proximity to other Adult-Oriented Business uses can have adverse secondary effects on local businesses and residences.

4. There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by Adult-Oriented Businesses, including but not limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish convincing evidence that Adult-Oriented Businesses which are not regulated as to permissible locations often have a deleterious effect on nearby businesses in residential areas, causing, among other adverse secondary effects, an increase in crime and decrease in property values.

B. Based on the foregoing, the City Council of the City of Brentwood finds and determines that special regulation of Adult-Oriented Businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increase in crime rates or to the blighting or deterioration of the areas in which they are located or surrounding areas. The need for such special regulations is based upon the recognition that Adult-Oriented Businesses have serious objectionable operational characteristics, particularly when several of them are concentrated or located in direct proximity to sensitive uses such as parks, day care facilities, schools, churches, or youth oriented establishments thereby having a deleterious effect upon the adjacent areas. It is the purpose and intent of these special regulations to prevent the concentration of Adult-Oriented Businesses and thereby prevent such adverse secondary side effects.

C. The locational requirements established by this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected Adult-Oriented Businesses in the City of Brentwood, and a sufficient reasonable number of appropriate locations for Adult-Oriented Businesses are provided by this ordinance.

D. The City Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication. The City Council takes note of the proliferation of adult material on the Internet and its availability as an alternative avenue of communication. The City Council also considers and relies on published decisions examining the proliferation of communications on the Internet. Reno v. American Civil Liberties Union (1997) 521 U.S. 844 (the principle 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.

E. In developing this ordinance, the City Council has been mindful of legal principles relating to regulation of Adult-Oriented Businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendments of the United States and California Constitutions, but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of Adult-Oriented Businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of Adult-Oriented Businesses, including but not limited to: Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976) (Reh. Denied 429 U.S. 873); Renton v. Playtime Theaters, 475 U.S. 41 (1986) (Reh. denied 475 U.S. 1132); FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); Barnes v. Glenn Theater, 501 U.S. 560 (1991), and City of Erie v. Paps A.M. (2000) 529 U.S. 1015; 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); Colacurico 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; and Dream Palace v. County of Maricopa, September 28, 2004, 2004 Daily Journal DAR 12034.

F. The City Council of the City of Brentwood also finds that locational criteria alone do not adequately protect the health, safety, and general welfare of the citizens of the City of Brentwood; and thus certain requirements with respect to the ownership and operation of Adult-Oriented Businesses are in the public interest. In addition to the findings and studies conducted in other cities regarding increases in crime rates, decreases in property values and the blighting of areas in which such businesses are located, the City Council also takes legislative notice of the facts recited in the case of Kev, Inc. v. Kitsap County, 793 F.2d 1053 (1986), regarding how live adult entertainment results in secondary effects such as prostitution, drug dealing, and other law enforcement problems.

G. The City Council finds the following, in part based upon its understanding of the
documents, testimony and judicial decisions in the public record:

1. Evidence indicates that some dancers, models and entertainers, and other persons who publicly perform Specified Sexual Activities or publicly display specified anatomical parts in Adult-Oriented Businesses (collectively referred to as “performers”) have been found to engage in sexual activities with patrons of Adult-Oriented Businesses on the site of the Adult-Oriented Business;

2. Evidence has demonstrated that performers employed by Adult-Oriented Businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to observe and participate with the performers in live sex shows;

3. Evidence indicates that performers at Adult-Oriented Businesses have been found to engage in acts of prostitution with patrons of the establishment;

4. Evidence demonstrates that performers employed by Adult-Oriented Businesses frequently use stage names and other aliases, making it difficult for law enforcement personnel to properly identify them or ascertain their true identities;

5. Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as a location for engaging in unlawful sexual activity; and

6. As a result of the above, and the increase in incidents of AIDS and Hepatitis B, which are both sexually transmitted diseases, the City has a substantial interest in adopting regulations which will reduce, to the greatest extent possible, the possibility for the occurrence of prostitution and casual sex acts at Adult-Oriented Businesses.

H. Zoning, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the community of Brentwood and to help assure that all operators of Adult-Oriented Businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects which naturally accompany the operation of such businesses.

I. The City Council has also determined that a closing hour’s requirement promotes the reduction of deleterious secondary effects from adult facilities and reasonably relies on prior court decisions on the need for closing hours including Mitchell v. Comm. On Adult Entertainment, 10 F.3d 123, 131-139 (3rd Cir. 1993); Lady J. Lingerie, Inc. v. City of Jacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997) and Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995).

J. The City Council of the City of Brentwood recognizes the possible harmful effects on children and minors exposed to the effects of such Adult-Oriented Businesses and the deterioration of respect for family values, and the need and desire of children and minors to stay away from and avoid such businesses, which causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses; and the City Council desires to minimize and control the adverse secondary side effects associated with the operation of Adult-Oriented Businesses and thereby protect the health, safety, and welfare of the citizens of Brentwood; protect the citizens from increased crime; preserve the quality of life; preserve property values and the character of surrounding neighborhoods and businesses; deter the spread of urban blight and protect against the threat to health from the spread of communicable and sexually transmitted diseases.

K. It is not the intent of the City Council of the City of Brentwood in enacting this ordinance, or any provision thereof, to condone or legitimize the distribution of obscene material, and the City of Brentwood recognizes that state law prohibits the distribution of the obscene materials and expects and encourages law enforcement officials to enforce state obscenity statutes against such illegal activities in the City of Brentwood.

L. Nothing in this ordinance is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter or the exhibition or public display thereof.

M. In prohibiting public nudity in Adult-Oriented Businesses, the City Council does not intend to proscribe the communication of erotic messages or any other communicative element or activity, but rather only to prevent or reduce the secondary impacts associated with such public nudity.

N. The City Council also finds, as a wholly independent basis, that it has a substantial public interest in preserving societal order and morality, and that such interest is furthered by a prohibition on public nudity.

O. While the City Council desires to protect the rights conferred by the United States Constitution to Adult-Oriented Businesses, it does so in a manner that ensures the continued and orderly development of property within the City and diminishes, to the greatest extent feasible, those undesirable secondary effects which the aforementioned studies have shown to be associated with the development and operation of Adult-Oriented Businesses.

P. The City declares that the restrictions imposed pursuant to this ordinance are part of a regulatory licensing process. Notwithstanding any other provision of the Brentwood Municipal Code, the City does not impose a criminal penalty for violations of the provisions of this ordinance related to sexual conduct or activities. This shall not in any way preclude the encouraged enforcement of criminal statutes and penalties under State and Federal law. The City Council adopts these limitations only as a condition of issuance and maintenance of an Adult-Oriented Business permit issued pursuant to the City Code.

Q. The City Council finds that preventing the direct exchange of money between entertainers and patrons also reduce the likelihood of drug and sex transactions occurring in Adult-Oriented Businesses.

R. Requiring separations between entertainers and patrons reduces the likelihood that such persons will negotiate narcotics sales and/or transact sexual favors within the Adult-Oriented Business.

S. Enclosed or concealed booths and dimly-lit areas within Adult-Oriented Businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmission of disease. Requirements that all indoor areas be open to view by management at all times, and that adequate lighting be provided are necessary in order to reduce the opportunity for, and therefore the incidence of illegal conduct within Adult-Oriented Businesses, and to facilitate the inspection of the interior of the premises thereof by law enforcement personnel.

T. The City Council recognizes that some activities which occur in connection with adult oriented businesses are protected as expression under the First Amendment to the United States Constitution. The City Council further recognizes that First Amendment rights are among our most precious and highly protected rights, and wishes to act consistently with full protection of those rights. This ordinance is not intended to interfere with legitimate expression but to avoid and mitigate the secondary effects enumerated above. Specifically, the City of Brentwood finds the licensing of persons who operate and manage adult oriented businesses and persons who provide adult services will further the goals of the ordinance by enabling the City of Brentwood to ascertain if an applicant is underage or has engaged in criminal or other behavior of the sort the ordinance is designed to limit. This information will enable the City of Brentwood to allocate law enforcement resources effectively and otherwise protect the community. The City Council finds the foregoing to be true with respect to places where alcohol is served and where it is not. The fees established for licenses and permits in this ordinance are based on the estimated cost of implementation, administration and enforcement of the licensing program.

U. The City prepared a Negative Declaration pursuant to the California Environmental Quality Act (CEQA) because this ordinance will not have a significant impact on the environment.

V. On March 1, 2005, the Planning Commission held a noticed public hearing and voted 3-2 to recommend approval of this ordinance to the City Council.

W. A duly noticed City Council public hearing was advertised in the Brentwood Press as required by City and State law.

X. The City Council of the City of Brentwood held a public hearing on July 26, 2005, and considered this ordinance and all information provided in the staff report, the recommendation by the Planning Commission, and public comments received.

Y. The City Council of the City of Brentwood makes the following finding per the Brentwood Municipal Code associated with this ordinance:

This ordinance is consistent with the General Plan and other applicable City plans, policies and regulations, and is appropriate to the public interest, as described in the above findings.

Section 2. The Negative Declaration prepared for this project in accordance with CEQA is hereby adopted.

Section 3.

The current Chapter 17.690 of the Brentwood Municipal Code is hereby repealed in its entirety and shall now read as follows:

CHAPTER 17.690
CHAPTER 17.690 - ADULT ORIENTED BUSINESS REGULATIONS

Sections:

17.690.010 - Intent and Purpose of Chapter
17.690.020 - Definitions
17.690.030 - Prohibited Areas and Minimum Proximity Requirements
17.690.040 - Adult-Oriented Business Permit Required
17.690.050 - Application Requirements
17.690.060 - Investigation and Action on Application
17.690.070 - Appeal
17.690.080 - Judicial Review of Decision to Grant, Deny, or Revoke
17.690.090 - Permit Expiration
17.690.100 - Findings
17.690.110 - Registration of New Employees
17.690.120 - Adult-Oriented Business Development Standards
17.690.130 - Display of Permit
17.690.140 - Persons Under 18 Prohibited
17.690.150 - Transfer of Adult-Oriented Business Regulatory Permits
17.690.160 - Permit Revocation
17.690.170 - Violations
17.690.180 - Applicability to Other Regulations
17.690.190 - Conduct Constituting a Public Nuisance
17.690.200 - Inspections
17.690.210 - Severability

17.690.010 - Intent and Purpose of Chapter

A. Intent. This Chapter is intended to provide special design guidelines, standards, and development regulations to regulate the time, place, and manner of the operation of Adult-Oriented Businesses in order to minimize the negative secondary effects associated with these businesses including, but not limited to, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of Adult-Oriented Businesses in close proximity to each other or proximity to other incompatible uses, including churches, parks, playgrounds, schools, day care facilities, youth oriented establishments, and residentially zoned districts or uses. The Council finds that it has been demonstrated in various communities that the concentration of Adult-Oriented Businesses causes an increase in the number of transients in the area, and an increase in crime, and in addition to the effects described above, can cause other businesses and residents to move elsewhere.

B. Purpose. It is, therefore, the purpose of this Chapter to:

1. Establish reasonable and uniform regulations to prevent the concentration of Adult-Oriented Businesses or their close proximity to incompatible uses, while allowing the location of Adult-Oriented Businesses in certain areas; and

2. Regulate Adult-Oriented Businesses in order to promote the health, safety, and general welfare of the citizens of the City.

C. Not purpose, intent, or effect. The provisions of this Chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including adult-oriented materials. Similarly, it is not the intent, nor effect of this Chapter to restrict or deny access by adults to adult-oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult-oriented entertainment to their intended market. Neither is it the intent nor effect of this Chapter to condone or legitimize the distribution of obscene material.

17.690.020 - Definitions

The following terms and phrases are defined for the purposes of this Chapter.

1. Adult Arcade. Any business establishment or concern containing one or more coin or slug operated or manually or electronically controlled still or motion picture projectors, video machines, projector or similar image-producing devices, that are maintained to display images to an individual or group of individuals when those images are distinguished or characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas.

2. Adult Bookstore. Any establishment which as a regular and substantial course of conduct, displays and/or distributes Sexually Oriented Merchandise, Sexually Oriented Material, other printed materials, or other form of visual or audio representations which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to Specified Sexual Activities and/or Specified Anatomical Areas.

3. Adult Cabaret. A nightclub, bar, lounge, restaurant, or similar business establishment or concern which features as a regular and substantial course of conduct, any type of live entertainment, films, motion pictures, computer generated images, videos, discs, slides, or other photographic reproductions, or other oral, written or visual representations which are distinguished or characterized by an emphasis upon matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas.

4. Adult Dance Studio. Any business establishment or concern which provides for members of the public a partner for dance where the partner, or the dance is distinguished or characterized by an emphasis upon matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas.

5. Adult Hotel/Motel. A hotel, motel, or other similar business establishment or concern offering public accommodations for any form of consideration which as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with closed-circuit television, films, computer generated images, motion pictures, videos, discs, slides, pay per adult titles (unless parental locks are provided), other photographic reproductions, or other medium, material which is distinguished or characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas and which rents, leases, or lets any room for less than a 12-hour period, or rents, leases, or lets any single room more than once in a 24-hour period.

6. Adult Modeling Studio. Any business or premises where there is furnished, provided, or procured, a figure model or models who pose in any manner which is characterized by its emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas where the model(s) is being observed or viewed by any person for the purpose of being sketched, photographed, painted, drawn, sculpted, filmed, or videotaped or otherwise depicted for a fee, compensation, gratuity, or other thing of value as consideration for the right or opportunity to so observe the model or to remain on the premises. "Adult Modeling Studio" does not include any Live Art Class or any studio or classroom which is operated by any public agency, or any private educational institution authorized to issue and confer a diploma or degree in compliance with standards set by the State Board of Education.

7. Adult-Oriented Business. Any business establishment or concern which as a regular and substantial course of conduct operates as an Adult Arcade, Adult Bookstore, Adult Cabaret, Adult Dance Studio, Adult Hotel/Motel, Adult Modeling Studio, Adult Theater; any business establishment or concern which as a regular and substantial course of conduct sells or distributes or offers for sale or distribution Sexually Oriented Merchandise or Sexually Oriented Material; or any other business establishment or concern which as a regular and substantial course of conduct offers to its patrons products, merchandise, services, or entertainment characterized by an emphasis on matters depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas. "Adult-Oriented Business" does not include those uses or activities, the regulation of which is preempted by State law.

8. Adult-Oriented Business Operator. A person who supervises, manages, inspects, directs, organizes, controls, or in any other way is responsible for or in charge of the premises of an Adult-Oriented Business or the conduct or activities occurring on the premises thereof. This term shall hereinafter be referred to as "operator."

9. Adult Theater. A business establishment or concern which, as a regular and substantial course of conduct, presents live entertainment performances, motion pictures, videos, computer images, slide photographs, or other pictures or visual representations or reproductions which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas.

10. Applicant. A person who is required to file an application for a permit under this Chapter, including an individual owner, managing partner, officer of a corporation, or any other operator, manager, employee, or agent of an Adult-Oriented Business.

11. Bar. Any commercial establishment that by State law is required to be licensed by the State Department of Alcoholic Beverage Control as an “on-sale” licensee to serve any alcoholic beverages on the premises.

12. Commission. Commission shall mean the Planning Commission of the City of Brentwood.

13. Director. Director shall mean the Community Development Director of the City of Brentwood.

14. Distinguished or characterized by an emphasis upon. Shall mean and refer to the dominant or essential theme of the object described by the phrase. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon" the depiction or description of Specified Sexual Activities or Specified Anatomical Areas, the films so described are those whose dominant or predominant character or theme are the depiction of the enumerated sexual activities or anatomical areas. See Pringle v. City of Covina (1981) 115 Cal.App.3d 151.

15. Entertainer. Any person who dances, models, entertains, and/or performs Specified Sexual Activities or displays Specified Anatomical Areas in an Adult-Oriented Business.

16. Establishment of an Adult-Oriented Business. Shall mean and include any of the following:

(a) The opening or commencement of any Adult-Oriented Business as a new business;

(b) The conversion of an existing business, whether or not an Adult-Oriented Business, to any Adult-Oriented Business defined herein;

(c) The addition of any of the Adult-Oriented Businesses defined herein to any other existing Adult-Oriented Business; or

(d) The relocation of any Adult-Oriented Business.

17. Figure model. Any person who, for pecuniary compensation, consideration, hire, or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed, or otherwise depicted.

18. Live Art Class. Any premises on which all of the following occur: there is conducted a program of instruction involving the drawing, photographing, or sculpting of live models exposing Specified Anatomical Areas; instruction is offered in a series of at least two classes; the instruction is offered indoors; an instructor is present in the classroom while any participants are present; and preregistration is required at least 24 hours in advance of participation in the class.

19. Nudity or a state of nudity. The showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the areola.

20. Operate an Adult-Oriented Business. The supervising, managing, inspecting, directing, organizing, controlling, or in any way being responsible for or in charge of the conduct of activities of an Adult-Oriented Business or activities within an Adult-Oriented Business.

21. Permittee. The person to whom an Adult-Oriented Business Permit is issued.

22. Person. Any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

23. Regular and substantial course of conduct means that one or more of the following conditions exist:

(a) The area devoted to Sexually Oriented Merchandise and/or Sexually Oriented Material exceeds more than 20 percent (20%) of the total display or floor space area open to the public;

(b) The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on specified sexual activity or Specified Anatomical Areas at least four times in any month; or

(c) The sale, trade, display, or presentation of services, products, or entertainment which are characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas exceeds more than 20 percent (20%) of the total revenue generated by the business or total display or floor space open to the public.

24. School. Any child or day care facility, or an institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained in compliance with standards set by the State Board of Education. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education or an institution of higher education, including a community or junior college, college, or university, but it does not include a vocational institution.

24. Semi-nude. A state of dress in which clothing covers no more than the genitals, pubic region, buttocks, areola of the female breast, as well as portions of the body covered by supporting straps or devices.

25. Sexual Encounter Center. Any business, agency, or person who, for any form of consideration or gratuity, provides a place where three or more persons, not all members of the same family, may congregate, assemble, or associate for the purpose of engaging in Specified Sexual Activities or exposing Specified Anatomical Areas.

26. Sexually Oriented Material. Any element of sexually oriented merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, disc, cassettes, slides, tapes, records, computer generated image, or other written, oral or visual representation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas.

27. Sexually Oriented Merchandise. Sexually oriented implements and paraphernalia, including, but not limited to, dildos, auto sucks, sexually oriented vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery or electrically operated vaginas or penises, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity or which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas.

28. Specified Anatomical Areas. Shall mean and include any of the following:

(a) Less than completely and opaquely covered human (a) genitals or pubic region; (b) buttocks; and\or (c) 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; or

(c) Any device, costume, or covering that simulates any of the body parts included in Subparagraphs (a) or (b) above.

29. Specified Sexual Activities. Shall mean and include any of the following, whether performed directly or indirectly through clothing or other covering;

(a) Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, direct physical stimulation of genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory function in the context of a sexual relationship, any of the following depicted sexually oriented acts or conduct: analingus, bestiality, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerastia; or

(b) Clearly depicted human genitals in a state of sexual stimulation, arousal, or tumescence; or

(c) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or

(d) Fondling, or touching of nude human genitals, pubic region, buttocks, or female breast; or

(e) Masochism, erotic, or sexually oriented torture, beating, or the infliction of pain; or

(f) Erotic or lewd touching, fondling, or other sexually oriented contact with an animal by a human being; or human excretion, urination, menstruation, vaginal, or anal irrigation; or

(g) The presence of any person who performs, or appears in a state of nudity or semi-nude.

30. Youth Oriented Establishment. Any establishment likely to be frequented by minors, such as, but not limited to, video game arcades, skating rinks, bowling alleys, etc.

17.690.030 - Prohibited Areas and Minimum Proximity Requirements

A. Planned Development Zoning Districts. Subject to the limitations set forth in this Chapter, Adult-Oriented Businesses may be established in the following Planned Development (PD) zoning districts provided that the separation requirements as outlined under subsections B and C of this section are adhered to: Planned Development Six (PD-6); Planned Development Thirty-Six (PD-36); Planned Development Thirty-Eight (PD-38); Planned Development Fifty-One (PD-51); Planned Development Fifty-Two (PD-52); and Planned Development Fifty-Three (PD-53).

B. Specified distance separation requirements. Notwithstanding the above, no Adult-Oriented Business shall be established or located within certain distances of certain specified land uses or zoning districts as set forth below. No Adult-Oriented Business shall be established or located:

1. Within a 1,000-foot radius from any existing residential zoning district or use. The distance between a proposed Adult-Oriented Business use and a residential zoning district or use shall be measured from the nearest exterior wall of the facility housing the Adult-Oriented Business use or proposed Adult-Oriented Business use to the nearest property line included within a residential zoning district or property in current residential use, along a straight line extended between the two points; or

2. Within 1,000 feet of any other Adult-Oriented Business as defined in this Chapter which is located either inside or outside the jurisdiction of the City. The distance between the two Adult-Oriented Business uses shall be measured between the nearest exterior wall of the facility housing the Adult-Oriented Business use and proposed Adult-Oriented Business use along a straight line extended between the two points; or

3. Within 1,000 feet from any existing park, playground, religious facility, or school use or property zoned Open Space (OS), Public Facilities (PF) or Semi-Public Facilities (SPF). The distance between a proposed Adult-Oriented Business use and park, playground, day care facility, youth oriented establishment, church or school uses or property zoned Open Space (OS), Public Facilities (PF), or Semi-Public Facilities (SPF) shall be measured from the nearest exterior wall of the facility housing the Adult-Oriented Business use or proposed Adult-Oriented Business use to the nearest property line where the park, playground, church, day care facility, youth oriented establishment, or school use is located, or property zoned Open Space (OS), Public Facilities (PF), or Semi-Public Facilities (SPF) along a straight line extended between the two points.

C. Separation requirements also apply to the General Plan. The above distance limitations shall also apply to residential districts or uses and parks, playgrounds, schools, day care facilities, Youth Oriented Establishments, and church uses or property so designated in the General Plan Land Use Element of an adjacent jurisdiction.

17.690.040 - Adult-Oriented Business Permit Required

A. Adult-Oriented Business Permit and business license required. It shall be unlawful for any person to engage in, conduct, establish, carry on, or to permit to be engaged in, conducted, established, or carried on, in or upon any premises in the City, the operation of an Adult-Oriented Business unless the person first obtains and continues to maintain in full force and effect both an Adult-Oriented Business Permit and a business license from the City.

B. Not allowed by right. No Adult-Oriented Business may be established within the City by right. All persons wishing to establish an Adult-Oriented Business within the City shall first apply for and receive an Adult-Oriented Business Permit in compliance with this Chapter.

C. Applicant to supply sufficient evidence. It is the burden of the applicant for an Adult-Oriented Business Permit to supply sufficient evidence to justify the grant of an Adult-Oriented Business Permit.

17.690.050 - Application Requirements

A. Application submittal. Any person desiring to operate or establish an Adult-Oriented Business within the City shall file with the Community Development Department an Adult-Oriented Business Permit application on a standard application form supplied by the Community Development Department.

B. Required information. All applications shall include the following information:

1. If the applicant is an individual, the individual shall state his or her legal name, including any aliases, address, and submit satisfactory written proof that he or she is at least 18 years of age.

2. If the applicant is a partnership, the partners shall state the partnership's complete name, address, the names and current addresses of all partners, whether the partnership is general or limited, and attach a copy of the partnership agreement, if any.

3. If the applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of California, the names, addresses, and capacity of all officers and directors, the name of the registered corporate agent and the address of the registered office for service of process.

4. The notarized signature of the property owner and proof of ownership.

5. A non-refundable deposit or fee as set forth by the City’s Fee Schedule.

6. Signed statement by the applicant verifying that applicant intends to and will comply with all of the adult-oriented business development standards of this Chapter.

7. A description of the Adult-Oriented Business for which the permit is requested and the proposed address where the Adult-Oriented Business will operate, plus the names and addresses of all the owners and leasers of the Adult-Oriented Business site.

8. The address to which notice of action on the application is to be mailed.

9. The names of all employees, independent contractors, and other persons who will perform/work at the Adult-Oriented Business.

10. A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the Adult-Oriented Business. The sketch or diagram need not be professionally prepared, but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.

11. A straight-line drawing prepared within thirty (30) calendar days before application depicting the building and the portion thereof to be occupied by the Adult-Oriented Business, and:

(a) The property line of any residential zoning district or use within 1000 hundred feet of the primary entrance of the Adult-Oriented Business;

(b) The property line of any other Adult-Oriented Business within 1000 feet of the primary entrance of the Adult-Oriented Business for which a Business Permit is requested; and

(c) The property lines of any church, Youth Oriented Establishment, school, park, playground, or day care facility within 1000 feet of the primary entrance of the Adult-Oriented Business.

12. A diagram of the off-street parking areas and premises and entries of the Adult Oriented Business showing the location of the lighting system required by this Chapter. Said diagram shall include a photometric study by a licensed lighting engineer.

13. A security system plan shall be provided which shall minimally include web/browser-based video accessibility by the Police Department of all public areas of the establishment. This plan shall be submitted to, and approved by, the Chief of Police or their designee. Such system(s) shall be maintained in good, operable working order throughout the terms of the permit for operation.
C. Signature of applicant required. If the applicant is an individual, he or she shall sign the application. If the applicant is other than an individual, an officer of the business entity or an individual with a ten percent (10%) or greater interest in the business entity shall sign the application.

D. Fictitious name, if applicable. If the applicant intends to operate the Adult-Oriented Business under a name other than that of the applicant, the applicant shall file the fictitious name of the Adult-Oriented Business and show proof of registration of the fictitious name.

E. CEQA compliance. All applicants for an Adult-Oriented Business Permit shall also fill out the City's environmental review package\initial study checklist for purposes of complying with the California Environmental Quality Act (CEQA).

F. Director’s determination of completeness. The Director shall determine whether the application contains all the information required by this Chapter. If it is determined that the application is not complete, the applicant shall be notified, in writing, within thirty (30) days of the date of receipt of the application that the application is not complete and the reasons therefore, including any additional information necessary to render the application complete. The applicant shall have thirty (30) calendar days to submit additional information to render the application complete. Failure to do so within the 30-day period shall render the application automatically void. Within thirty (30) days following the receipt of an amended application or supplemental information, the Director shall again determine whether the application is complete in compliance with the procedures set forth in this Subsection. Evaluation and notification shall occur as provided above until the time the application is found to be complete. The applicant shall be notified within ten (10) days of the date the application is found to be complete. All notices required by this Chapter shall be deemed given upon the date that they are either deposited in the United States mail or the date upon which personal service of the notice is provided.

G. Other permits or licenses. The fact that an applicant possesses other types of State or City permits or licenses does not exempt the applicant from the requirement of obtaining an Adult-Oriented Business Permit.

17.690.060 - Investigation and Action on Application

A. Appropriate investigation and inspection. Upon the filing of a completed application, the Commission shall cause to be made by its own members, or members of its staff, an appropriate investigation, including consultation with the building, police, fire and health departments and inspection of the premises as needed. Consultation is not grounds for the City to unilaterally delay in reviewing a completed application.

B. Public hearing within 45 days. Within forty-five (45) days of receipt of the completed application, the Commission shall hold a public hearing on the application for an Adult-Oriented Business Permit. Notice of the public hearing shall be given in compliance with California Government Code Section 65091, as the same may be amended from time to time.

C. Relevant evidence. In reaching a decision on an application for an Adult-Oriented Business Permit, the Commission shall not be bound by the formal rules of evidence. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.

D. Commission’s decision within 60 days. The Commission shall grant, conditionally grant or deny an application for an Adult-Oriented Business permit ("Permit" or "Adult-Oriented Business Permit"). The Commission shall render a written decision on the application for an Adult-Oriented Business Permit within sixty (60) days of receiving a completed application. The failure of the Commission to render a decision within this time frame shall be deemed to constitute a denial of the application. Any conditions imposed upon the Permit shall be in keeping with the objective development standards of this Chapter and the underlying zoning district in which the property is located.

E. Transmittal of decision to applicant. The Commission's decision shall be hand-delivered or mailed to the applicant.

17.690.070 - Appeal

A. Appeal of Commission’s decision. Any interested person may appeal the decision of the Commission to the Council in writing within ten (10) days after the Commission's written decision. In addition, within ten (10) days after the Commission's written decision, any member of the Council shall have the authority to direct that the Council review the decision of the Commission on the grounds that the individual council member believes that the matter should be decided by the Council.

B. De novo public hearing. Consideration of an appeal of the Commission's decision shall be at a de novo public hearing which shall be noticed in the same manner as the public hearing of the Commission and shall occur within thirty (30) days of the filing of the appeal or initiation of review by the Council.

C. Council’s action on appeal. The Council action on the appeal of the Commission's decision shall be by a majority vote of the quorum, and upon the conclusion of the public hearing, the Council shall grant, conditionally grant, or deny the application. The Council's decision shall be final and conclusive.

D. Relevant evidence. In reaching its decision, the Council shall not be bound by the formal rules of evidence. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.

17.690.080 - Judicial Review of Decision to Grant, Deny, or Revoke

A. Court challenge. The time for court challenge to a decision by the Council to grant, deny, or revoke, an Adult-Oriented Business Permit is governed by California Code of Civil Procedure Section 1094.6.

B. Transmittal of decision to applicant. Notice of the Council's decision and its findings shall be mailed to the applicant and shall include citation to California Code of Civil Procedure Section 1094.6.

C. Prompt judicial review. The Petitioner may seek prompt judicial review of the Council's action in compliance with California Code of Civil Procedure Section 1094.8.

17.690.090 - Permit Expiration

Any Adult-Oriented Business Permit approved in compliance with this Chapter shall become null and void unless the proposed use is established within one hundred eighty (180) days of the date from the approval, except that, as to facilities that are a reuse of existing facilities, if before the expiration date the Permittee demonstrates to the satisfaction of the Commission that the applicant has a good faith intent to presently commence the proposed use, the Permittee may receive up to two 180-day extensions.

17.690.100 - Findings

A. Required findings. The Commission or Council shall approve or conditionally approve an application for an Adult-Oriented Business Permit where the information submitted by the applicant substantiates all of the following findings:

1. The applicant is over the age of 18 years;

2. The required application fee has been paid;

3. The proposed use complies with the development and design requirements of the underlying zoning district in which it is located and with the applicable development standards of this Chapter;

4. The proposed site is not located within a 1,000-foot radius from any existing residential zoning district or use. The distance between a proposed Adult-Oriented Business use and a residential zoning district or use shall be measured from the nearest exterior wall of the facility housing the Adult-Oriented Business use or proposed Adult-Oriented Business use to the nearest property line included within a residential zoning district or property in current residential use, along a straight line extended between the two points;

5. That the proposed site is not located within 1,000 feet of any other Adult-Oriented Business as defined in this Chapter which is located either inside or outside the jurisdiction of the City. The distance between the two Adult-Oriented Business uses shall be measured between the nearest exterior wall of the facility housing the Adult-Oriented Business use and proposed Adult-Oriented Business use along a straight line extended between the two points;

6. The proposed site is not located within 1,000 feet from any existing park, playground, church, school, or day care facility uses or property zoned Open Space (OS), Public Facilities (PF), or Semi-Public Facility (SPF). The distance between a proposed Adult-Oriented Business use and park, playground, church, day care facility, youth oriented establishment, or school uses or property zoned Open Space (OS), Public Facilities (PF), or Semi-Public Facilities (SPF) shall be measured from the nearest exterior wall of the facility housing the Adult-Oriented Business use or proposed Adult-Oriented Business use to the nearest property line where the park, playground, church, day care facility, youth oriented establishment, or school use or property zoned Open Space (OS), Public Facilities (PF), or Semi-Public Facilities (SPF) is located, along a straight line extended between the two points;

7. The proposed site is not located within 1,000 feet of a residential zoning district or use or within 1,000 feet of a park, playground, church, or school use located in or property so designated in the General Plan Land Use Element of an adjacent jurisdiction; and

8. Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, have been found guilty or pleaded nolo contendere (no contest) within the past four (4) years of a misdemeanor or a felony classified by the State as a sex or sex-related offense.

B. Conditions imposed on the Permit. Any conditions imposed upon the Permit shall be in keeping with the objective development standards of this Chapter and the underlying zoning district in which the property is located.

17.690.110 - Registration of New Employees

A. Employee registration required. As a condition of approval of every Adult-Oriented Business Permit issued in compliance with this Chapter, every owner or operator of an Adult-Oriented Business shall register every employee with the Police Department within five (5) business days of the commencement of the employee's period of employment at the Adult-Oriented Business.

B. Color photographs and other information required. Each employee shall be required to provide two (2) recent color passport-quality photographs and, at the discretion of the Police Chief, shall allow himself or herself to be fingerprinted by the Police Department for purposes of identification. In addition, each new employee shall provide the following information in a form provided by the Police Department:

1. Name, current resident address, and telephone number;

2. Date of birth;

3. Social Security number;

4. Height, weight, color of eyes and hair; and

5. Stage name, if applicable, and other aliases used within the previous two (2) years.

C. Current employee register required. Each owner or operator of an Adult-Oriented Business shall maintain a current register of the names of all employees currently employed by the Adult-Oriented Business, and shall disclose the registration for inspection by any Police Officer for the purposes of determining compliance with the requirements of this Section.

D. Failure to comply. Failure to register each new employee within five (5) days of the commencement of employment, or to maintain a current register of the names of all employees shall be deemed a violation of the conditions of the Adult-Oriented Business Permit and may be considered grounds for suspension or revocation of the permit.

17.690.120 - Adult-Oriented Business Development Standards

A. Unlawful hours of operation. It shall be unlawful for any operator or employee of an Adult-Oriented Business to allow the adult business to remain open for business, or to permit any employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, after the hours of 10:00 pm and prior to 10:00 am of any day of the week.

B. Compliance with building and fire regulations. Maximum occupancy load, fire exits, aisles, and fire equipment shall be regulated, designed, and provided in compliance with the Fire District and building regulations and standards adopted by the City.

C. Observation of activities or materials outside prohibited. No Adult-Oriented Business shall be operated in any manner that permits the observation of any material or activities depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas from any public way or from any location outside the building or area of the establishment. This provision shall apply to any display, decoration, sign, show window, or other opening. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times.

D. Outdoor lighting level required. All off-street parking areas and other exterior areas of the Adult-Oriented Business shall be illuminated from dusk to two (2) hours following or after the close of operation with a lighting system which provides an average maintained horizontal illumination of one foot candle of light evenly distributed at ground level. The required lighting level is established in order to provide sufficient illumination of the parking areas, walkways, and outdoor areas serving the Adult-Oriented Business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct. The lighting shall be shown on the required sketch or diagram of the premises and shall be maintained in 100% working order as approved in the submitted/required and approved photometric plan.

E. All areas shall be readily accessible. The operator of an Adult-Oriented Business shall not permit any doors on the premises to be locked during business hours and, in addition, the operator shall be responsible to see that any room or area on the premises shall be readily accessible at all times and shall be open to view in its entirety for inspection by any law enforcement official, including the viewing and access to the digital video security system and any other surveillance/security audio video system(s).

F. Posting of California Penal Code Section 314 required. The Adult Oriented Business shall post in plain view inside the front portion of the business, a sign, in two-inch print which shall reference California Penal Code Section 314 which shall read as follows:

1. Every person who willfully and lewdly either: (1) exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or (2) procures, counsels, or assists any person so as to expose himself or take part in any model artist exhibition, or to make any other exhibition of himself to public view or the view of any number of persons, which is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor.

2. Upon the second and each subsequent conviction under Subparagraph 1 above, or upon a first conviction under Subparagraph 1 above, after a previous conviction under [California Penal Code] Section 288, every person so convicted is guilty of a felony, and is punishable by imprisonment in State prison. "California Penal Code Section 314."

G. Open to view by management. All indoor areas of the Adult-Oriented Business within which patrons are permitted, except rest rooms and customer changing rooms, if any, shall be open to view by the management at all times.

H. Additional "Adult Arcade" provisions. Any Adult-Oriented Business which is also an "Adult Arcade", shall comply with the following additional provisions:

1. The interior of the premises shall be configured so 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 and customer changing rooms. Restrooms and customer changing rooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured so 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 Subparagraph shall be direct line of sight from the manager's station. If viewing is to be accomplished by means of two or more manager’s stations, then both stations are required to be staffed during hours of operation and occupancy of such affected areas.

2. The view area specified in Subparagraph 1 above, shall remain unobstructed by any doors, walls, merchandise, display racks, or other materials at all times. No patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted.

3. No viewing room or changing room may be occupied by more than one person at any one time.

4. The walls or partitions between viewing rooms or booths, changing rooms, restrooms, and stalls or spaces contained therein shall be maintained in good repair at all times, with no holes between any two of the rooms that would allow viewing from one booth or room into another or that would allow physical contact of any kind between the occupants of any two of the booths or rooms.

5. Customers, patrons, or visitors who are not actively engaged in shopping for or reviewing the products available on display for purchaser viewing, shall not be allowed to stand idly by in the vicinity of any video booths, or to remain in the common area of the business, other than the restrooms. Signs prohibiting loitering shall be posted in prominent places in and near the video booths.

6. The floors, seats, walls, and other interior portions of all video booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen, or saliva in any of the booths shall be evidence of improper maintenance and inadequate sanitary controls; instances of these conditions may justify suspension or revocation of the Adult-Oriented Business permit.

I. Indoor lighting level required. All interior areas of the Adult-Oriented Business shall be illuminated at a minimum of the following foot-candles, minimally maintained and evenly distributed at ground level:





Location
Minimum Illumination Level
(foot-candles)



Adult arcades
10

Bookstores and other retail establishments
20

Modeling studios
20

Motels/hotels
20 in public areas

Theaters and cabarets
5, except that a minimum of 1.25 shall be required during performances

J. Separate restrooms required. The Adult-Oriented Business shall provide and maintain separate restrooms for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using a restroom for females, and female patrons and employees shall be prohibited from using a restroom for males, except to carry out duties of repair, maintenance, and cleaning of the rest room facilities. The restrooms shall be free from any Adult-Oriented Material. Restrooms shall not contain television monitors or other motion picture or video projection, recording, or reproduction equipment. The foregoing provisions of this Subparagraph shall not apply to an Adult-Oriented Business that deals exclusively with sale or rental of Sexually Oriented Material or Sexually Oriented Merchandise that is not used or consumed on the premises and which does not provide restroom facilities to its patrons or the general public.

K. Additional requirements for live entertainment. The following additional requirements shall pertain to Adult-Oriented Businesses providing live entertainment depicting Specified Anatomical Areas or involving Specified Sexual Activities, except for businesses regulated by the Alcoholic Beverage Control Commission:

1. No employee, owner, operator, responsible managing employee, manager, or permittee of an Adult-Oriented Businesses providing live entertainment shall allow any person below the age of 18 years upon the premises or within the confines of the business if no alcoholic beverage is served, or under the age of 21 if alcoholic beverages are served.

2. No entertainer shall dance with or otherwise be within 4 feet of a patron while performing for compensation or while on the Adult-Oriented Businesses premises. This 4-foot separation shall be marked by a railing or other physical barrier designed to obstruct any contact between the entertainer and the patron(s).

3. No owner, operator, responsible managing employee, manager, or permittee shall permit or allow at licensed premises any patron to approach within 4 feet of an entertainer, or permit or allow an entertainer to approach within 4 feet of a patron.

4. All employees, other than entertainers while performing, shall, at a minimum while on or about the licensed premises, wear an opaque covering which covers their Specified Anatomical Areas.

5. The Adult-Oriented Business shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use.

6. The Adult-Oriented Business shall provide an entrance/exit for entertainers which is separate from the entrance/exit used by patrons.

7. The Adult-Oriented Business shall provide access for entertainers between the stage and the dressing rooms which is completely separated from the patrons. If a separate access is not physically feasible, the Adult-Oriented Business shall provide a minimum 3-foot wide walk aisle for entertainers between the dressing room area and the stage, with a railing, fence, or other barrier separating the patrons and the entertainers capable of (and which actually results in) preventing any physical contact between patrons and entertainers.

8. No entertainer, either before, during, or after performances, shall have physical contact with any patron and no patron shall have physical contact with any entertainer either before, during, or after performances by the entertainer. This Subparagraph shall only apply to physical contact on the premises of the Adult-Oriented Business.

9. No patron shall directly pay or give any gratuity to any entertainer and no entertainer shall solicit any pay or gratuity from any patron.

L. Security guards required. Adult-Oriented Businesses shall employ security guards in order to maintain the public peace and safety, consistent with the following standards:

1. Adult-Oriented Businesses featuring live entertainment shall provide at least one security guard at all times while the business is open. If the occupancy limit of the premises is greater than twenty-five (25) persons, an additional security guard shall be on duty for each additional 25 occupants.

2. All Adult-Oriented Businesses shall have a responsible person who shall be at least 18 years of age and shall be on the premises to act as manager at all times during which the business is open. The individual designated as the on-site manager shall be registered with the Police Chief by the owner to receive all complaints and be responsible for all violations taking place on the premises.

3. All Adult-Oriented Businesses shall provide a security system that visually records and monitors the exterior premises of the property including all parking lot areas, or in the alternative, uniformed security guards shall patrol and monitor the exterior premises of the property, including the parking lot areas during all business hours, with surveillance of the site continuing for two (2) hours after closing. A sign indicating compliance with this provision shall be posted on the premises. The sign shall not exceed two by three feet and shall at a minimum be one foot by one and a half feet. This portion of the security system shall be integrated/incorporated in the video security system approved by the Chief of Police or their designee as part of the permit review process.

4. Security guards shall be uniformed in a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of State law. No security guard required in compliance with this Subparagraph shall act as a door person, ticket seller, ticket taker, admittance person, or sole occupant of the manager's station while acting as a security guard.

M. X-rated movies or videos. The availability of X-rated movies or videos shall be restricted only to persons over 18 years of age. If an establishment that is not otherwise prohibited from providing access to persons under 18 years of age sells, rents, or displays videos or other motion picture media that have been rated "X" or rated "NC-17" by the motion picture rating industry ("MPAA"), or which have not been submitted to the MPAA for a rating, and which consist of images which are distinguished or characterized by an emphasis on depicting or describing Specified Sexual Activities or Specified Anatomical Areas, the videos shall be located in a specific section of the establishment where persons under the age of 18 shall be prohibited. All access to sexually oriented material or merchandise shall be restricted to persons over 18 years of age.

N. Disposal in locked garbage receptacles only. Any and all sexually oriented materials or sexually oriented merchandise discarded by an Adult-Oriented Business shall be fully contained within a locked garbage receptacle at all times so that minors are not exposed to sexually oriented materials or sexually oriented merchandise and all items which may constitute bio-hazard waste shall be properly disposed of in approved bio-hazard refuse containers, readily available to both staff and patrons. These items shall be lawfully removed from the premises on a daily basis.

The foregoing applicable requirements of this Section shall be deemed conditions of Adult-Oriented Business permit approvals, and failure to comply with every requirement shall be grounds for revocation of the permit issued in compliance with these regulations.

17.690.130 - Display of Permit

Each Adult-Oriented Business shall display at all times during business hours the Adult-Oriented Business Permit issued in compliance with the provisions of this Chapter in a conspicuous place so that the same may be readily seen by all persons entering the Adult-Oriented Business.

17.690.140 - Persons Under 18 Prohibited

It shall be unlawful for any permittee, operator, or other person in charge of any Adult-Oriented Business to employ, or provide any service for which it requires an Adult-Oriented Business Permit, to any person who is not at least 18 years of age.

17.690.150 - Transfer of Adult-Oriented Business Regulatory Permits

A. Only at approved address. A Permittee shall not operate an Adult-Oriented Business under the authority of an Adult-Oriented Business permit at any place other than the address of the Adult-Oriented Business stated in the application for the Adult-Oriented Permit.

B. No transfer without permit amendment. A Permittee shall not transfer ownership or control of an Adult-Oriented Business or transfer an Adult-Oriented Business Permit to another person unless and until the transferee obtains an amendment to the Permit from the Commission stating that the transferee is now the Permittee. The amendment may be obtained only if the transferee files an application with the Commission in compliance with Sections 17.690.040 (Adult-Oriented Business Permit Required) and 17.690.050 (Application Requirements), above, accompanies the application with a transfer fee as set forth in the City’s Fee Schedule, and the Commission determines in compliance with Sections 17.690.060 through 100 that the transferee would be entitled to the issuance of an original Adult-Oriented Business Permit. The transfer fee shall be paid in lieu of the filing fee required by Section 17.690.050.

C. No transfer when subject to suspension or revocation. No Adult-Oriented Business Permit may be transferred when the Permittee has been notified that the Adult-Oriented Business Permit has been or may be suspended or revoked.

D. No transfer in violation of this Section. Any attempt to transfer an Adult-Oriented Business permit either directly or indirectly in violation of this Section is hereby declared void, and the Adult-Oriented Business Permit shall be deemed revoked.

17.690.160 - Permit Revocation

A. Findings required for revocation. Any Adult-Oriented Business Permit issued in compliance with the provisions of this Chapter may be revoked by the City on the basis of any of the following:

1. The business or activity has been conducted in a manner which violates one or more of the conditions imposed upon the issuance of the permit or which fails to conform to the plans and procedures described in the application, or which violates the occupant load limits for the building in which the use is located set by the Fire Marshal;

2. The Permittee has misrepresented a material fact in the application for a permit or in any report required to be filed with the City or has not answered each question in the application truthfully;

3. The Permittee has failed to obtain or maintain all required City, County, and State licenses and permits;

4. The Permit is being used to conduct an activity different from that for which it was issued;

5. The building or structure in which the Adult-Oriented Business is conducted is hazardous to the health or safety of the employees or patrons of the business or of the general public under the standards set forth in the Uniform Building, Uniform Plumbing, or Uniform Fire Code;

6. The permitted business creates sound levels which violate the City's noise regulations (Section 17.30.050);

7. The Permittee, if an individual, or any of the officers or general partners, if a corporation or partnership, is found guilty or pleaded nolo contendere to a misdemeanor or felony classified by the State as a sex or sex-related offense during the period of the Adult-Oriented Business's operation;

8. The Permittee, employee, agent, partner, director, stockholder, or manager of an Adult-Oriented Business has knowingly allowed or permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the Adult-Oriented Business:

(a) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation;

(b) Use of the Adult-Oriented Business site as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur;

(c) Any conduct constituting a criminal offence which requires registration under Section 290 of the California Penal Code;

(d) The occurrence of acts of lewdness, assignation, or prostitution including any conduct constituting violations of California Penal Code Sections 315, 316, 318, or 647(b);

(e) Any act constituting a violation of provisions of the California Penal Code relating to obscene matter or distribution of harmful matter to minors, including, but not limited to, Sections 311 through 313.4; or

(f) Any conduct prohibited by this Chapter.

9. Failure to abide by any action previously imposed by an appropriate City official; and

10. The use for which the approval was granted has ceased to exist or has been suspended for one hundred eighty (180) days or more.

B. Transmittal of notice. Written notice of hearing on the proposed 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 permittee at least ten (10) days before the hearing.

C. Relevant evidence. The Commission shall hold a public hearing on the proposed revocation of the Permit. Notice of the public hearing shall be given in compliance with California Government Code Section 65091, as the same may be amended from time to time. In reaching a decision on the proposed revocation, the Commission shall not be bound by the formal rules of evidence. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.

D. Commission’s action. The Commission shall revoke, not revoke, or not revoke but add additional conditions to, the Permittee's Adult-Oriented Business Permit. Any additional conditions imposed upon the Permit shall be in keeping with the objective development standards of this Chapter and the underlying zoning district in which the property is located.

E. Transmittal of Commission’s decision. The Commission's decision shall be in writing, and shall be hand-delivered or mailed to the applicant.

F. Decision within 30 days. The Commission shall make its final decision within thirty (30) days of the public hearing.

G. Appeal of Commission’s decision. Any interested person may appeal the decision of the Commission to the Council in writing within ten (10) days after the Commission's written decision. In addition, within ten (10) days after the Commission's written decision, any member of the Council shall have the authority to direct that the Council to review the decision of the Commission on the grounds that the individual council member believes that the matter should be decided by the Council.

H. De novo public hearing. Consideration of an appeal of the Commission's decision shall be at a de novo public hearing which shall be noticed in the same manner as the public hearing of the Commission and shall occur within thirty (30) days of the filing of the appeal or initiation of review by the Council. In reaching its decision, the Council shall not be bound by the formal rules of evidence. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.

I. Council’s action on appeal. The Council action on the appeal of the Commission's decision shall be by a majority vote of the quorum, and upon the conclusion of the public hearing, the Council shall revoke, not revoke, or not revoke but add additional conditions to, the Permittee's Adult-Oriented Business Permit. Any additional conditions imposed upon the Permit shall be in keeping with the objective development standards of this Chapter and the underlying zoning district in which the property is located. The Council's decision shall be final and conclusive.

J. No new permit within 12 months after revocation. In the event a permit is revoked pursuant to this Chapter, another Adult-Oriented Business Permit to operate an Adult-Oriented Business shall not be granted to the Permittee within twelve (12) months after the date of the revocation.

17.690.170 - Violations

Any person who violates any section of this Chapter shall be guilty of a misdemeanor and is subject to a fine and/or imprisonment in compliance with the limits set forth in California Government Code section 36901, as it may be amended from time to time, or any other legal remedy available to the City.

17.690.180 - Applicability to Other Regulations

The provisions of this Chapter are not intended to provide exclusive regulation of the Adult-Oriented Business uses. These uses shall comply with any and all applicable regulations imposed in other articles of this Land Use Code, other City ordinances, and State and Federal law.
17.690.190 - Conduct Constituting a Public Nuisance

The conduct of any business within the City in violation of any of the terms of this Chapter is hereby found and declared to be a public nuisance, and the City Attorney or the District Attorney may, in addition or in lieu of prosecuting a criminal action hereunder, commence an action or proceeding for the abatement, removal, and enjoinment thereof, in the manner provided by law; and shall take other steps and shall apply to other courts as may have jurisdiction to grant relief that will abate or remove the Adult-Oriented Business and restrain and enjoin any person from conducting, operating, or maintaining an Adult-Oriented Business contrary to the provisions of this Chapter.

17.690.200 - Inspections

An applicant or permittee shall permit representatives of the Police Department, Health Department, Community Development Department, or other City Departments or Agencies to inspect the premises of an Adult-Oriented Business for the purpose of ensuring compliance with the law and the development standards applicable to Adult-Oriented Businesses, at any time it is occupied or opened for business. A person who operates an Adult-Oriented Business or his or her agent or employee is in violation of the provisions of this Section if he/she refuses to permit the lawful inspection of the premises at any time it is occupied or open for business.

17.690.210 - Severability

Each section and each provision or requirement of any section of this ordinance shall be deemed severable and the invalidity of any portion of this ordinance shall not affect the validity or enforceability of any other portion.

Section 4. This Ordinance shall take effect and be in force thirty days following its adoption.

Section 5. Any judicial review of this Ordinance shall be by writ of mandate under Code of Civil Procedure 1085. Any action or proceeding seeking to attack, review, set aside, void or annul this ordinance shall be commenced within 90 days after the adoption of this Ordinance.

Section 6. This Ordinance shall be published in accordance with Government Code Section 36933 by either posting or publishing the ordinance in accordance with that law. Further, the City Clerk is directed to cause Section 3 of this Ordinance to be entered in the Brentwood Municipal Code.


THE FOREGOING ORDINANCE was introduced with the first reading waived at a regular meeting of the Brentwood City Council on the 26th day of July, 2005, by the following vote:

AYES:
NOES:
ABSENT:
ABSTAIN:

And was adopted at a regular meeting of the Brentwood City Council on the day of , 2005, by the following vote:


AYES:
NOES:
ABSENT:
ABSTAIN:


APPROVED:



Brian Swisher
Mayor


ATTEST:



City Clerk
































STAFF REPORT

PLANNING COMMISSION REGULAR MEETING OF

MARCH 1, 2005


PREPARED BY: Mike Leana, Chief of Planning

AGENDA ITEM NUMBER: Item No. 4

FILE NUMBER: ZTA 05-01

PROJECT DESCRIPTION: Adoption of a revised adult entertainment ordinance which establishes permitting requirements and procedures for operating adult oriented businesses and adult service providers and designates certain areas of the city where they may be located.

DATE OF NOTICE: Legal notice was advertised in the Ledger Dispatch on February 9, 2005, along with a notice of the availability of a Negative Declaration prepared for the project.

ZONING: Not applicable

LAND USE: Not applicable

SURROUNDING LAND USES: This is a city-wide ordinance.

CONSTRUCTION SCHEDULE: Not applicable

APPLICANT: The City of Brentwood is the project proponent.

PREVIOUS ACTION: The city’s existing adult entertainment ordinance was adopted in the 1980’s as part of the city’s last major revision of the zoning ordinance.

RECOMMENDATION: Pass Resolution No. 05-04 recommending that the City Council delete existing Chapter 17.690 of the Municipal Code (Zoning Ordinance) relating to adult entertainment and adopt a new Chapter 17.690 which establishes locational criteria, and processing and permitting procedures for adult oriented businesses and adult service providers within the city limits of Brentwood.







REQUEST:

City staff is proposing a new ordinance to regulate the use and location of adult oriented businesses and adult service providers within the city. It replaces the existing ordinance which is very outdated and reflects more recent court decisions regarding how these types of businesses can be regulated through zoning.

BACKGROUND:

The regulation of adult entertainment businesses has undergone dramatic changes in the last 20+ years based upon numerous court cases. Brentwood’s existing ordinance relating to said uses is outdated and needs to be amended to reflect existing definitions and the numerous court decisions that have occurred. As the City of Brentwood continues to grow, this type of use, which is permitted under the First Amendment to the Constitution, needs to be regulated in a manner that is consistent with Federal law but also protects the integrity and the morals of its citizens.

The existing ordinance permits adult entertainment businesses with a conditional use permit within the C-3 (Thoroughfare commercial) zone, only. There are only a few areas zoned C-3 in the city. They include a small section near the Safeway “curve” in the downtown area; along both sides of Brentwood Blvd. where the new car dealers are located up to where CentroMart is located, which is adjacent to the downtown; along the east side of Brentwood Blvd. between Havenwood Drive and Beverly Place; along both sides of Brentwood Blvd. between Sunrise Drive and Lone Tree Way; and individual parcels at the northwest and southeast corners of Lone Tree Way and O’Hara Avenue. Staff does not feel that any of these five areas are appropriate locations for the operation of adult oriented businesses. Brentwood Blvd. is an entrance corridor into the City which gives passersby their first impression of the city. In addition, the identified C-3 zoning districts are either too close to existing single family residential areas and/or located within or adjacent to the City’s Historic Downtown, an area that the City’s General Plan identifies as the City’s major focal point. As such the possibility of introducing adult oriented businesses in this area would be unwise.

The intent of the new ordinance is to recognize the legitimacy of these types of uses by identifying and allowing several sites where they could be located while at the same time attempting to insure that their existence and operation would not adversely impact surrounding properties.

ENVIRONMENTAL DETERMINATION:

A Negative Declaration has been prepared for this project since there is no categorical exemption that applies. There were no adverse environmental impacts identified. Past practice has shown that adult entertainment businesses normally locate in existing buildings for which an environmental analysis was undertaken at the time of building construction.

ANALYSIS:

The City Attorney has indicated with regard to the permitted location(s) for adult oriented establishments, cities and counties cannot exclude them and must allow a “reasonable” number of locations. Most cities restrict their location by obviously prohibiting them in residential zones and also requiring a minimum separation from uses like schools, churches, parks, day care facilities, youth-oriented establishments and from each other.
City staff looked at three scenarios: (1) establishing a minimum separation of 1000 feet from the aforementioned land uses, (2) establishing a minimum separation of 500 feet from the aforementioned land uses, and (3) establishing a minimum separation of 250’ from the aforementioned uses. We then compared the three maps generated by these distances and after reviewing the potential site locations (at the 250’, 500’ and 1,000’ separation) with the Police Chief and City Attorney with respect to response times, development potential, and general land use issues facing the city. Based upon this review it was decided that establishing a 500’ separation would create a sufficient number of potential locations for adult oriented businesses while minimizing the negative secondary effects that are often associated with the operation of these types of uses. Establishing a 1,000 foot separation would overly restrict the number of potential locations, while establishing a 250 foot separation would locate adult oriented businesses too close to the type of land uses we are trying to protect.

The potential areas that remain, based upon the 500’ limitation referenced above, include 5 areas located west of the railroad tracks where most of the growth in the city during the past 5 years has taken place and three areas east of the railroad tracks which will be included within the Brentwood Blvd. Corridor Specific Plan analysis. They include:

• Site 1 - an area along the east side of Empire Avenue, north of the intersection of Lone Tree Way, which is a portion of PD-38.

• Site 2 - an area along the west side of the Bypass, running from Lone Tree Way south down to and including the commercial portion of the Seeno property. This includes portions of PD-36, PD-51 and PD-52.

• Site 3 - an area along the east side of the Bypass, running from the south side of Sand Creek Road northerly to Lone Tree Way. This includes portions of PD-6, PD-48 and PD-53.

• Site 4 - an area on the John Muir Hospital site which is a portion of PD-49.

• Site 5 - an area along the west side of Walnut Blvd. just north of the ECCID channel, which is a portion of PD-47.

• Site 6 - an area on both sides of O’Hara Avenue south of the intersection of Sand Creek Road and O’Hara Ave. located within Special Planning Area (SPA) ‘B” which is PD-42.

• Site 7 - an area along the west side of Brentwood Blvd. south of Sand Creek Road which is also in Spa ‘B’ / PD-42.

• Site 8 - an area on the east side of Brentwood Blvd. in SPA ‘A’ which is PD-55.

Sites 4 & 5 are developing and/or reserved for future job generating office development uses, i.e.-major job employers. As such, staff would prefer not to designate them as potential adult entertainment sites. Sites 6, 7 & 8 are still predominantly undeveloped but will be analyzed for land use potential as part of the Brentwood Blvd. Corridor Specific Plan Review. Early indications and directions from the City’s Specific Plan Consultant, Michael Freedman and City Council, respectively, is that additional housing should be designated in these 2 SPA areas. Consequently, staff is suggesting that these three sites not be designated as acceptable locations for adult oriented businesses as we anticipate the additional residential land use added to them would be within the minimum 500 foot distance separation required by the proposed new ordinance. Staff feels that there are ample potential locations for adult entertainment uses in Sites 1, 2 & 3 above which are intended to develop with predominantly retail and service uses. However, since the small portion of Site 3 (within PD-48) is developing as a gas station/fast food use, staff is recommending that PD-48 be eliminated as an acceptable location.

The proposed new ordinance would continue the existing practice of treating adult oriented businesses as conditionally permitted uses within the zoning districts designated. This would insure that the appropriate public notice is provided to Brentwood property owners so that they could provide public input during the planning process.

SUMMARY:

Based upon the above background and analysis, staff recommends the Planning Commission pass Resolution 05-04 recommending that the City Council repeal existing Chapter 17.690 and add a new Chapter 17.690 to the Brentwood Municipal Code, establishing permitting and processing procedures for adult oriented businesses within the City of Brentwood, and establishing available locations identified as Sites 1, 2 & 3 on the attached map.

Attachments:
Resolution
Proposed Ordinance
Map
Existing Ordinance
Negative Declaration

























CITY OF BRENTWOOD
PLANNING COMMISSION
MINUTES MARCH 1, 2005
COUNCIL CHAMBERS
7:00 PM
Steve Padgett, Vice Chairman
Don Stirling, Commissioner
Ray Shipley, Chairman Arthur Londos, Commissioner
Russell Pitkin, Commissioner

CALL TO ORDER

Roll Call
Present: Shipley; Padgett; Londos; Pitkin; Stirling

PRESENTATION

Chairman Ray Shipley presented a plaque of appreciation to Chris Becnel, 2004 Chairman of the Planning Commission. Chris said that during the years he served, he really appreciated staff's professionalism shown to the Commission. He stated staff always made their decisions based upon what was in the best interest of the City of Brentwood.

AGENDA REVIEW

Approve agenda review for Item 4 - Draft Ordinance RE: Adult Businesses, comments from Lt. Kevin King and Mike Leana, Chief of Planning.

Motion: Approve agenda review for Item 4 - Draft Ordinance RE: Adult Businesses, comments from Lt. Kevin King and Mike Leana, Chief of Planning.
Moved by Padgett, seconded by Stirling.
Vote: Motion carried 5-0.
Yes: Shipley; Padgett; Londos; Pitkin; Stirling

CITIZEN COMMENTS

None.

CONSENT CALENDAR

1. Approve the Minutes of the Planning Commission meeting of February 15, 2005.

CONSENT CALENDAR ACTIONS

Item 1. Chairman Shipley pulled Item 1 to clarify that Item 2 on the Minutes of February 15, 2005, was a Public Hearing, and to indicate it as such; and to request that the prepared statement that Chris Becnel read into the record last meeting be cited and made a part of the permanent record.
Padgett/Pitkin to accept Consent Calendar

Motion to clarify that Item 2 on the Minutes of February 15, 2005, was a Public Hearing, and to indicate it as such; and to request that the prepared statement that Chris Becnel read into the record last meeting be cited and made a part of the permanent record.
Moved by Padgett, seconded by Pitkin.
Vote: Motion carried 5-0.
Yes: Shipley; Padgett; Londos; Pitkin; Stirling

NEW BUSINESS

2. Approve a Design Review application for the construction of a 4,700 sq. ft. retail building and a 5,148 sq. ft. restaurant building, located within Brentwood Station at the southeast corner of Lone Tree Way and Jeffery Way. Applicant: KPO, LLC. File: DR 04-36 (Zilm).

Senior Planner Zilm gave a brief overview of the staff report.

Applicant, Galen Grant of Flynn Craig and Grant Architects, spoke in favor of his project. He directed his comments to the Harry’s Hofbrau portion of the project. He talked about the design of the building, the architectural theme, outdoor seating, landscape design.

Chairman Shipley asked about an exit door on the north elevation, and the proximity of the drive lanes to the outdoor seating.

Commissioner Pitkin asked about the location of the handicapped parking.

William C. Walker, owner of the property in the back portion of this project. He spoke in favor of this project, indicating that the restaurant is unique and would be benefit to the City, and he asked that the commissioners approve the project as presented.

Bob Paul, a member of the development group representing Harry's Hofbrau, spoke in favor of this project, and explained a little about the history of the restaurant.

Commissioner Stirling agreed that the handicapped parking needs to be closer to the front of the project, and wanted bike racks to be installed. He is in favor of the building design as presented.

Commissioner Padgett stated that he liked the design as presented with the added condition presented in the staff report comments. He felt it was a good design for a gateway into the City.

Commissioner Londos was concerned about the outdoor seating, and said it could be a safety factor. He liked the design. He asked about the ATM location and requested that it be covered.

Commissioner Pitkin thought the design was fine, but did have questions regarding the roof design. He liked the gables on the restaurant. He liked the additional parking, and liked that it was distinct and unique.

Chairman Shipley asked about the large building in the rear of this project. He talked about the building design and landscaping, traffic flow, roof gables, roof equipment, site location, and the view from the proposed overpass. He recommended a seating area near the front door for waiting customers. Chairman Shipley asked where the auto teller would be on the bank. He discussed the handicapped access for bank customers, screening the building from the overpass, building colors, and the front canopy.

Commissioner Padgett asked what the corner shop might be, adjacent to the bank. He asked how many parking spaces they were over the requirement. Senior Planner Zilm indicated they were 21 spaces over on the entire site.

Motion to approve Planning Commission Resolution No. 05-15 with the following conditions: Condition 11, move handicapped parking to the approval of staff; Condition 12, redesign roof to the approval of staff and the design review subcommittee, including the aspect of screening of the mechanical rooftop equipment; Condition 13, the ATM to have weather protection to the approval of staff; and Condition 14, trellises and vines are to be added to the east side of the building to the approval staff.
Moved by Padgett; seconded by Stirling
Vote: Motion carried 5-0.
Yes: Shipley, Padgett, Londos, Stirling, Pitkin

3. Public Hearing. A request for a Conditional Use Permit to establish a Master Sign Program for the Brentwood Station located at the southeast intersection of Lone Tree Way and Jeffery Way.
Applicant: KPO, LLC. File: CUP 04-20 (Zilm).

Senior Planner Zilm gave a brief overview of the staff report.

Commissioner Padgett asked about the signs that were already up. He indicated that the Shell station signs are already on the canopy. The operator of the station indicated that the signs were temporary.

Commissioner Stirling asked Senior Planner Zilm to define the location of the Shell Monument Sign. Commissioner Stirling also indicated that there are also signs indicated on the site plans but not on the elevations, and signs on the elevations but not on the site plan. He asked for more accurate information from the applicant.

Tryg Olson, Arrow Sign Company, author of the Master Sign Program, was present to answer the Commissioner’s questions.

Commissioner Stirling asked about the confusion of the signs not being shown accurately on the elevations and site plans. Mr. Olson indicated that the site plans were the accurate.

Commissioner Padgett asked about the signs on the Hofbrau.

Public Hearing opened.

Public Hearing closed.

Chairman Shipley stated he thought the master sign program was inconsistent. He indicated that the discrepancies between the site plan and elevations needed to be straightened out. He said the building would be its own sign, and he asked the applicant to clarify with staff exactly where the signs would be located. Chairman Shipley indicated that the small cabinet signs that are proposed were not what the Commission wants to see.

Planning Manager Kline indicated that the cabinet signs were conditioned to be redesigned and they would return to staff for review and approval. Chairman Shipley asked that the Design Review Committee look at the redesign.

Chairman Shipley discussed cabinet signs and illuminated letters. Chairman Shipley thought the monument signs were too large. The locations of the monument signs were discussed. Chairman Shipley thought the Brentwood Station sign should be the monument sign and the other signs should be inside the project, not have all of the signs along the roadway.

Commissioner Padgett asked about the location of Jeffrey Way. He liked the Brentwood Station entry sign, but did not like the location of the sign. He discussed traffic flow and turn aisles, the outdoor eating area of the restaurant.

Commissioner Pitkin asked what the dimensions of Sign A (Brentwood Station) were. He has a concern about the height of the sign as it relates to line of site obstruction. He felt it presented a safety hazard.

Commissioner Stirling said two monument signs were enough. He asked if the signs were to be placed on berms or mounds. He thought the 8 foot monument sign was too tall. He preferred it be kept to 5 or 6 feet.

Commissioner Londos indicated the Brentwood Station sign should be located on the west and east side of the center. He wanted the signs to be consistent as far as height goes. He asked about Jeffrey Way and how it relates to the on and off ramps to the Bypass project.

Chairman Shipley asked what signage would be present for the buildings at the back of the lot. He felt that the monument sign should be used for buildings that are not visible at a glance from the street.

Commissioner Pitkin said he was not sure the surrounding restaurants had stand alone sign. He agreed that the building would be its own sign, and the building in the rear is the building that is going to need the sign.

Commissioner Padgett stated that the Planning Commissioners are not approving what the sign says. The Planning Commission approves the location and design of the signs. He asked the applicant where the entry signs would go, and why they are not using the Brentwood Station sign as the center identification monument sign for the west elevation.

William C. Walker stated he would like to have the complete total package before the Commission. He asked that the Commission consider the signs for the Shell station and the Wendy’s since they are almost ready to open. He would like to refine the remainder of the master sign program and bring it back to the Planning Commission. He discussed the roadways and other problems that impacted this site, related to the Bypass.

Sunny Goyal, representative from the Shell gas station, indicated that the 5 foot 4 inch Shell sign provided by corporate cannot be changed. State regulations are also involved, and this sign is the only constraint they have.

Motion to return the Master Sign Program for this project to staff to work out the signage design for the Shell and Wendy’s as quickly as possible to the satisfaction of staff and the Design Review Committee, and that the applicant would bring back the remainder of the Master Sign Program to the Planning Commission at a future date once it has been revised.
Moved by Shipley, seconded by Padgett.
Vote: Motion carried 4-1.
Yes: Shipley; Padgett; Londos; Pitkin
No: Stirling

4. Public Hearing. A Zoning Text Amendment related to the location and operating requirements for adult oriented businesses and adult service providers. File: TA 05-01 (Leana)

Chief of Planning Leana and Lt. King gave a brief overview of the staff report.

Commissioner Stirling asked if video rental establishments already located in Brentwood are affected by this proposed ordinance.

Lt. King stated he visited each existing video store in Brentwood, and they all presently exclude adult content videos. He stated that if a new one came in and wanted an adult section, they would need to comply with the new ordinance requirements. He said he is in favor of the 1000 foot separation from sensitive land uses.

Commissioner Stirling asked about the inclusion of PD 6 in one of the indicated sites.

Commissioner Pitkin asked about site 3.

Commissioner Padgett asked about similar ordinances in Antioch and Oakley.

Commissioner Pitkin asked if there was current litigation regarding this matter. Chief of Planning Leana stated that there had been some questions from potential applicants, that necessitated we refine our regulations.

Chairman Shipley asked about tattoo parlors.

Commissioner Londos asked about pay per view in our hotels and motels. Lt. King indicated that all future requests would be considered on an individual basis.

Public Hearing opened.

Cindy Johnson, an applicant for an adult boutique, stated that her proposed business would be basically a clothing store, with adult novelty items. She asked that her store be considered like a Spencer’s or Victoria’s Secret, with only 25 percent of her store being adult novelty items. She stated that no merchandise on display would be offensive.

Public Hearing closed.

Commissioner Padgett asked about age restrictions. Chief of Planning stated that the businesses we are regulating may or may not be age restricted, depending on the nature of the business. Lt. King indicated that it did not matter what a business was called, what was being sold would determine the nature of the business.

Commissioner Londos does not think all adult oriented businesses should be in one single area.

Commissioner Stirling is in favor of the 1000 foot rule separation.

Commissioner Pitkin appreciated the need for a very clear, concise, well thought out ordinance, but is concerned that the ordinance needs to be reviewed by the Chief of Police and the City Attorney.

Chief of Planning Leana stated that this proposed Ordinance was reviewed by the City of Brentwood Police Department, including the Chief of Police, and was written together with the previous City Attorney. The Planning Commission would not be approving the ordinance, just recommending that City Council consider the proposed Ordinance.

Lt. King stated that the addendum written by himself and the Chief of Planning, as presented in the Agenda Review, should be reviewed by the Police Chief and by the interim City Attorney.

Chairman Shipley introduced Karen Murphy, of McDonough, Holland and Allen, interim City Attorneys, who stated their office, would work with Lt. King and the Chief of Planning to review the additional comments and incorporate them into the ordinance in a way that they felt was legally adequate. She is aware that the Ordinance had been reviewed by the former City Attorney, and was based upon a League of California Cities Ordinance. She stated it would be fully reviewed before it went to City Council for action.

Chief of Planning Leana reiterated that the reason why City Staff was recommending the use of a 500 ft. separation from “sensitive land uses” (with the stipulation that only sites 1, 2 & 3 being acceptable) was to provide a “reasonable” number of locations without being too restrictive. Going to 1000 ft, immediately precludes sites 4 through 8, and reduces the size of the general area allowed by the 500 ft. separation thereby overly restricting where these types of uses could locate.

Motion to approve Resolution No. 05-04 as outlined on the staff report with the following conditions: 1. only sites 1, 2 and 3 are be considered; 2. the separation zone be expanded to 1000 feet; 3. the agenda review item be included in the approval; and 4. the Ordinance is subject to review by the interim City Attorney and the Chief of Police prior to City Council consideration.
Moved by Londos, seconded by Stirling.
Vote: Motion carried 3-2.
Yes: Londos; Pitkin; Stirling
No: Shipley; Padgett

INFORMATIONAL REPORTS FROM PLANNER

None.

COMMISSION AND STAFF REPORTS

5. Meeting Schedule:
Transplan: no report.
School: there is no 2005 meeting schedule at this time.
Design Review: being scheduled.
Housing: meeting cancelled.
Econ. Dev/Redev: meeting cancelled.

REQUESTS FOR FUTURE AGENDA ITEMS

None.



ADJOURNMENT

There being nothing further to come before the Planning Commission on March 1, 2005, the meeting was adjourned at 9:55 PM. The next regularly scheduled meeting is March 15, 2005 at 6:00 PM. For a workshop on new police security procedures.

Respectfully submitted,
Diane Porter








































A NEGATIVE DECLARATION HAS BEEN PREPARED FOR THIS PROJECT. IT IS AVAILABLE FOR YOUR REVIEW AT:



CITY OF BRENTWOOD
COMMUNITY DEVELOPMENT DEPARTMENT
104 OAK STREET
BRENTWOOD, CA 94513

 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov