Title 5 BUSINESS LICENSES AND REGULATIONS
Chapter 5.01 SINGLE-USE PLASTIC CARRYOUT BAG REDUCTION
5.01.010 Title.
This chapter shall be known as the city's "Single-Use Plastic Carryout Bag Reduction" ordinance, and may be cited as such, and will be referred to herein as "this chapter."
5.01.020 Purpose and intent.
The purposes of this chapter are to:
(A) Enact a bag reuse program that reduces waste and pollution, and that decreases the use of single-use plastic carryout bags in the city of American Canyon.
(B) Protect the environment from the negative impacts of single-use carryout bags by reducing the use of single-use plastic carryout bags, with a provision that would require retail stores within the city of American Canyon to charge customers who request recycled paper bags.
(C) Provide an incentive for customers to use reusable bags or bring their own bags by exempting application of the bag charge from those customers who use reusable bags or bring their own bags.
5.01.030 Definitions.
For purposes of this chapter, the following definitions shall apply:
(A) "Customer" means any person obtaining merchandise from a retail establishment.
(B) "Director" means the community development director of the city of American Canyon, or a designee of the community development director or city manager.
(C) "Merchandise" means any consumer goods as that term is defined by California Civil Code Section 1791(a), except that "merchandise" shall also include clothing and consumables, as those terms are defined by California Civil Code Section 1791(c) and (d), respectively. "Merchandise" does not include prepared food. "Merchandise" includes, but is not limited to, liquor and beer, clothing, electronics and groceries that are not prepared food.
(D) "Person" means any human person, as well as any other form of legal entity (including a corporation, partnership, joint venture, limited liability company, or sole proprietorship).
(E) "Post-consumer recycled material" means a material that would otherwise be destined for solid waste disposal, having completed its intended end use and product life cycle. Post-consumer recycled material does not include materials and byproducts generated from, and commonly reused within, an original manufacturing and fabrication process.
(F) "Public eating establishment" means a restaurant, take-out food establishment, or any other business that receives ninety percent or more of its revenue from the sale of prepared food to be eaten on or off its premises. "Prepared food" means food or beverages which are prepared on the premises by cooking, chopping, slicing, mixing, freezing, or squeezing, and which require no further preparation to be consumed. Prepared food does not include any raw or uncooked meat product, or fruits and vegetables that are intended to be prepared for consumption off-site.
(G) "Recycled paper bag" means a paper bag provided by a retail establishment to a customer in accordance with this chapter, at the check stand, cash register, point of sale, or other point of departure for the purpose of transporting merchandise out of the establishment that contains no old growth fiber and a minimum of forty percent post-consumer recycled material; is one hundred percent recyclable; and has printed in a manner on the outside of the bag the word "Recyclable," the name and location of the manufacturer, and the percentage of post-consumer recycled content.
(H) "Retail establishment" means any commercial establishment that sells merchandise at retail directly to the customer; and is located within or doing business within the geographical limits of the city of American Canyon. Retail establishment does not include public eating establishments.
(I) "Reusable bag" means a bag made of cloth or other machine washable fabric that has handles, and is specifically designed and manufactured for multiple reuse.
(J) "Reusable plastic bag" means a bag made of durable plastic with handles that is at least 2.25 millimeters thick and is specifically designed and manufactured for multiple reuse.
(K) "Single-use plastic carryout bag" means a bag, provided by a retail establishment to a customer at the check stand, cash register, point of sale or other point of departure, for the purpose of transporting merchandise out of the establishment; provided that "single-use plastic carryout bag" specifically excludes any reusable bag or recycled paper bag and excludes any bag provided to the customer to: (1) transport produce, bulk food or meat from a produce, bulk food or meat department within a store to the point of sale; (2) hold prescription medication dispensed from a pharmacy; (3) segregate merchandise that could damage or contaminate other merchandise when placed together in a reusable bag or recycled paper bag; or (4) contain or wrap meat, fish, or frozen foods, whether prepackaged or not.
5.01.040 Single-use plastic carryout bags.
(A) On and after January 1, 2016, no retail establishment shall provide a single-use plastic carryout bag to a customer.
(B) On and after January 1, 2016, no retail establishment shall provide a recycled paper bag or a reusable plastic bag to a customer for the purpose of transporting merchandise out of the establishment unless: (1) the retail establishment charges the customer an amount of not less than ten cents per bag; and (2) the amount of the charge for each recycled paper bag or reusable plastic bag is separately itemized on the sales receipt provided by the retail establishment to the customer. Retail establishments that provide a durable bag made of cloth or other machine washable fabric may do so at no charge to their customers at the retail establishment's discretion.
(C) Retailers shall retain the proceeds from the collection of the charge required by subsection B for the point of sale purchase of a recycled paper bag or reusable plastic bag. This chapter does not restrict how retailers use these monies.
(D) Nothing in this chapter shall prohibit customers from using bags of any type that they bring to a retail establishment themselves or from carrying away goods that are not placed in a bag.
5.01.050 Exemptions.
A retail establishment may provide a reusable bag or a recycled paper bag at no cost at the point of sale for the following purposes:
(A) To a customer who is participating in the California Special Supplemental Food Program for Women, Infants, and Children pursuant to Article 2 of Chapter 1 of Part 2 of Division 106 of the Health and Safety Code, or a customer who is participating in the Supplemental Food Program pursuant to Chapter 10 of Part 3 of Division 9 of the Welfare and Institutions Code.
(B) To transport produce, bulk food or meat from a produce, bulk food or meat department within a store to the point of sale.
(C) To hold prescription medication dispensed from a pharmacy.
(D) To segregate merchandise that could damage or contaminate other merchandise when placed together in a reusable bag or recycled paper bag.
(E) To contain or wrap meat, fish, or frozen foods, whether prepackaged or not.
(F) To contain food from a public eating establishment.
5.01.060 Enforcement.
The director shall have primary responsibility for enforcement of this chapter. The director is authorized to make all necessary and reasonable rules and regulations with respect to the enforcement of this chapter. All such rules and regulations shall be consistent with the provisions of this chapter.
It is a violation of this code, subject to enforcement pursuant to Chapter 1.16 of this code and punishment and prosecution pursuant to Chapter 1.20 of this code, for any retail establishment to violate or fail to comply with any provision of this chapter.
Chapter 5.04 BUSINESS LICENSES GENERALLY
5.04.010 Enforcement.
(A) The city manager shall have the responsibility and power to enforce the provisions of this chapter, and the police chief shall render such assistance in the enforcement thereof as may from time to time be required.
(B) The city manager or designee, who may act through deputies or duly authorized assistants, may examine or cause to be examined, all places of business in the city to ascertain compliance with the provisions of this chapter.
(C) The city manager or designee, who may act through deputies or duly authorized assistants, shall have the power and authority to enter, free of charge, at any reasonable time, any place of business required by the provisions of this chapter to be licensed and require an exhibition of the license certificate. Any person having such license certificate issued in his or her possession or under his or her control who willfully fails to exhibit such certificate on demand shall be guilty of an infraction and subject to the penalties provided for by Section 1.24.040.
5.04.020 Business license required.
(A) Subject to the provisions of this chapter, all businesses engaged in or carried on in the city shall pay annual business license fees in the amounts as provided in this chapter. It is unlawful for any person to commence, transact, engage in, or carry on any business in the city without first having obtained a valid license and paid the applicable license fee, or without complying with any and all applicable provisions of this chapter.
(B) Compliance with such requirements shall not be construed to be a condition precedent to engaging in any business or corporation within the city where the imposition of such a condition precedent would be contrary to law.
(C) When any person shall by use of signs, circulars, cards, telephone book, internet or newspapers, advertise, hold out, or represent that he or she is in business in the city, or when any person holds an active license or permit issued by a governmental agency indicating that he or she is in business in the city, and such person fails to provide, after request by the collector, a sworn statement that he or she is not conducting a business in the city, then these facts shall be considered prima facie evidence that he or she is conducting a business in the city.
5.04.030 License subject to other regulations and fees.
(A) Persons required to pay a license fee for transacting and carrying on any business under this chapter shall not be relieved from the payment of any fees for the privilege of carrying on any similar or related activity required under any other ordinance of the city and shall remain subject to the regulatory provisions of other ordinances.
(B) No person shall be entitled to a business license and the collector shall not issue a business license to any person commencing business unless and until said person shall have complied with all applicable city ordinances. No license shall be issued covering any food or drink dispensing establishment, restaurant, pet hospital, pet shop, veterinarian, or kennel services until the applicant has obtained clearance from the county department of health.
5.04.040 False statements.
It is unlawful for any person knowingly to make any false statement in any application for a license pursuant to the provisions of this chapter.
5.04.050 True names on reports.
Every person making out any report or record required by the terms of this chapter or any copy shall sign his or her true name and give the true name and correct address of the licensee.
5.04.060 Illegal occupations.
A license granted pursuant to this chapter does not permit any occupation or activity of any kind which is prohibited by this code or any other ordinance, or by any state statute, law, rule, order or regulation.
5.04.070 Refusing license.
Before the city manager denies any license, either new or for renewal, unless a hearing already has been held, the applicant shall be notified in writing that the city manager intends to deny the license, and that the applicant may request a hearing before the city manager within five days after receipt of such notice.
5.04.080 Grounds for denial.
(A) The city manager may refuse to issue a license to carry on any business, occupation or activity, if such business, occupation or activity has been, will be, or is apt to become any one or more of the following:
(1) Prohibited by any local ordinance or by any state law, statute, rule or regulation and/or prohibited by federal law, statute, rule or regulation;
(2) A public nuisance;
(3) In any way detrimental to the public interest;
(4) Prohibited by zoning laws and ordinances.
(B) A license may also be denied on the grounds that the applicant has knowingly made a false statement in a material matter either in the application or in the testimony before the city manager or other body hearing such testimony.
5.04.090 Real party in interest.
The council, city manager, police department official, or other appropriate officer of body may examine under oath any applicant to determine who is the real party in interest in the business, occupation or exhibition for which a license is sought. If the council or other body or official finds that the application is in the interest of one whose license has been revoked or who has been refused a license, it may treat the application as though made by the real party in interest, and the application shall have the same effect against any future applications as if it had been made in the name of the real party in interest.
5.04.100 Grounds for revocation.
A license may be revoked on any one or more of the following grounds:
(A) Any facts exist upon which a denial of such license would be authorized;
(B) The licensee, or any agent or employee of the licensee has been convicted of violating any of the terms of this chapter, or any regulation, or of any law, statute, rule, order or regulation of the state, now or hereafter in force regulating the occupation or other activity for which the license was issued;
(C) The licensee obtained the license by fraudulent misrepresentations;
(D) If the license authorizes engaging in the business of repairing any property, such as radios, television, or vehicles, the licensee, or any agent or employee of the licensee has stolen, or been convicted of the theft of, such property or any part thereof;
(E) The licensee has been guilty of, or has been convicted of, fraud, false advertising or other misrepresentation, including misstatement of the work done, such as: (1) the installation of old, or second-hand parts and the charging for new parts; or (2) charging for parts not installed or any other misdealing, dishonesty, or willful failure to comply with the terms of any contract made as a part of the exercise of the occupation or activity licensed;
(F) The mutilation of any serial number, engine number, or other number or identifying mark on any property of other person, handled by the licensee in the course of the licensed business;
(G) Conspiracy with any person to do anything described in subsections B, C, D, E or F of this section;
(H) The failure or refusal of the licensee to notify the city manager of any material change in facts concerning the license within thirty days after such change.
5.04.110 Forfeiture of fee.
On revocation of the license, no part of the money in the hands of the city shall be returned, but the license fee shall be forfeited to the city.
5.04.120 New license.
When a license of any person is revoked for cause, no new or other license for the same or a similar business shall be granted to the same person within six months after such revocation.
5.04.130 Keeping insurance etc., in force.
(A) Whenever this code requires the applicant for any license or permit to procure, post, or maintain in effect any bond, undertaking, deposit, surety, or policy of insurance, any license or permit so issued shall be in good standing only when such bond, undertaking, deposit, surety, or policy of insurance is in full force and effect. Such license or permit shall be automatically suspended without notice at any time such bond, undertaking, deposit, surety, or policy of insurance is not in full force and effect.
(B) If a new bond, undertaking, deposit, surety, or policy of insurance acceptable to the city manager is filed before the cancellation or expiration of the old one becomes effective, the license or permit will continue in full force.
5.04.140 Administrative enforcement.
(A) Authority of the City Manager. The city manager, upon a hearing after giving the licensee five days' notice of the grounds for revocation or suspension, and the time and place of the hearing, and requiring him or her to show cause why the license should not be revoked, may revoke or suspend any one or more of the licenses held by such licensee. The city manager shall notify the licensee of his or her decision within three business days.
(B) Appeals to the Council. Any person aggrieved by the decision of the city manager may appeal the decision to the council in the manner provided in Section 5.04.320.
(C) Failure to Appeal. In the event no appeal is taken by the licensee, the decision of the city manager revoking or suspending such license shall become final and conclusive on the expiration of the time fixed for an appeal.
5.04.150 Compliance with laws required.
The payment of a license fee as required by the provisions of this chapter, and its acceptance by the city, and the issuance of such license to any person shall not entitle the holder to carry on any business unless he or she has complied with all the requirements of this code and all other applicable laws, nor to carry on any business in any building or on any premises designated in such license in the event such building or premises are situated in a zone or locality in which the conduct of such business is in violation of any law.
5.04.160 License and penalties constitute debt to city.
The amount of any license fee and penalty imposed by the provisions of this chapter shall be deemed a debt to the city. An action may be commenced in the name of the city in any court of competent jurisdiction, for the amount of any delinquent license fee and penalties.
5.04.170 Remedies cumulative.
All remedies prescribed under this chapter shall be cumulative and the use of one or more remedies by the city shall not bar the use of any other remedy for the purpose of enforcing the provisions of this chapter.
5.04.180 Definitions.
For the purposes of this chapter, unless it is plainly evident from the context that a different meaning is intended, certain terms used in this chapter are defined as follows:
"Business" means professions, trades, occupations, gainful activities, and all and every kind of calling whether or not carried on for profit.
"City" means the city of American Canyon, a municipal corporation of the state of California, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.
"Collector" means the city manager, or other city officer or employee charged with the administration of this chapter.
"Gross receipts" means the total amount of the sale price of all sales and the total amount charged or received for the performance of any act or service of whatever nature it may be, for which a charge is made or credit allowed, whether or not such act or service is done as a part or in connection with the sale of materials, goods, wares, or merchandise. "Gross receipts," as used in this chapter, shall mean the gross receipt of the year preceding the beginning of the annual license period. Included in gross receipts shall be all receipts, cash, credits, and property of any kind or nature, without any deduction therefrom on account of the cost of the property sold, the cost of the materials used, labor or service, costs, interest paid or payable, or losses or other expenses whatsoever. Excluded from gross receipts shall be the following:
1. Cash discounts allowed and taken on sales;
2. Credit allowed on property accepted as part of the purchase price and which property may later be sold;
3. Any tax required by law to be included in or added to the purchase price and collected from the consumer or purchaser;
4. Such part of the sale price returned by purchasers upon rescission of the contract sale as is refunded either in cash or by credit;
5. Amounts collected for others where the business is acting as an agent or trustee, to the extent that such amounts are paid to those for whom collected and provided the agent or trustee has furnished the collector with the names and addresses of the others and the amounts paid to them;
6. That portion of gross receipts which has been the measure of a license tax or fee paid to any other city for sales transacted outside the city.
"Peddler" means any person who travels by foot or by any type of conveyance from door to door, house to house, place to place, or street to street, carrying, conveying, or transporting food, goods, wares, merchandise or other personal property of any nature whatsoever, offering or exposing the same for sale, or making sales and delivering articles to purchasers, or who, without traveling from place to place, shall sell or offer the same for sale. The word "peddler" means and includes the words "hawker," "huckster," "roadside vendor," and "itinerant vendor." The word "peddler" shall also mean a person offering goods, wares or merchandise for sale or future delivery from a fixed place of business if the goods, wares or merchandise are sold during a temporary or limited period of time, or seasonally.
"Person" means all domestic and foreign corporations, associations, syndicated, joint stock corporations, partnerships of every kind, clubs, business, or common-law trusts, societies and individuals transacting and carrying on any business in the city other than as an employee.
"Solicitor" means any person who travels either by foot or by any type of conveyance from door to door, house to house, place to place or street to street, taking or attempting to take subscriptions, contracts of sale, or orders for the sale of foods, goods, wares, merchandise or other personal property of any nature whatever for future delivery, or for services to be furnished in the future, whether or not such person has, carries, or exposes for sale a sample of the subject of such sale or whether or not he or she collects advance payments on such sales. The word "solicitor" shall include any person who uses or occupies any building, structure, room, shop conveyance or other place other than a permanent store building within the county of Napa for the purpose of exhibiting samples and taking orders for merchandise or service for future delivery. The word "solicitor" shall include itinerant merchants, and persons soliciting funds or otherwise peddling or soliciting for religious, political or charitable purposes.
"Sworn statement" means an affidavit sworn to before a person authorized to take oaths or a declaration or certification made under penalty of perjury.
5.04.190 Separate license for each place or type of business.
A separate license must be obtained for each branch establishment or location of the business transacted and carried on and for each separate type of business licensed at the location or in the manner designated in such license; provided, that warehouses and distributing plants used in connection with and incidental to a business licensed under the provisions of this chapter shall not be deemed to be separate places of business or branch establishments; and provided further, that any person conducting two or more types of businesses at the same location and under the same management, or at different locations, but which businesses use a single set or integrated set of books and records may, at his or her option, pay only one fee calculated on all gross receipts of the businesses under the schedule that applies to the type of business of such person which requires the highest payment on such gross receipts except that a license fee of three dollars for each additional branch, location, or type of business shall be paid.
5.04.200 Information confidential.
The collector or any authorized representatives shall not make known in any manner whatever the business affairs, operations, or information obtained by an investigation of records and equipment of any person required to obtain a license or pay a license fee under the provisions of this chapter or to divulge the amount or source of income, profits, losses, expenditures, or any particular information set forth in any statement or application, or to permit any statement or application, or copy of either, or any other related document which contains specific information as to the amount or source of income or expenditures of any person obtaining a license to be seen or examined by any person; provided, that nothing in this section shall be construed to present the disclosure to or examination of records by another city agent for the sole purpose of administering or enforcing any of the provisions of this chapter or auditing of accounts of the collector, federal or state officials, or a grand jury or court of law upon subpoena or in a proceeding to determine the existence or amount of any license fee liability of the particular licensee to the city; nor shall the disclosure of the names and addresses of persons to whom licenses have been issued and the general type of their business be prohibited hereunder, together with general statistics regarding business fees collected or business done in the city.
5.04.210 Exemption—Generally.
(A) Nothing in this chapter shall be deemed or construed to apply to any person transacting and carrying on any business exempt by virtue of the Constitution or applicable Statutes of the United States or of the state of California. Any person claiming an exemption pursuant to this chapter shall file a sworn statement with the collector stating the facts upon which exemption is claimed and shall furnish such information and verification as may be required.
(B) In the absence of such statement substantiating the claim, such person and a reasonable opportunity for hearing to a licensee, may revoke any license granted pursuant to the provisions of this section upon information that the licensee is not entitled to the exemption as provided in this chapter.
5.04.220 Exemption—Charitable and nonprofit organizations.
The provisions of this chapter shall not be deemed or construed to require the payment of a license fee to conduct, manage or carry on any business, occupation, or activity from any institution or organization which is conducted, managed or carried on wholly for the benefit of charitable purposes from which profit is not derived, either directly or indirectly, by any individual; nor shall any license fee be required for the conducting of any entertainment, concert, exhibition, or lecture on scientific, historical, literary, religious or moral subjects within the city whenever the receipts of any such entertainment, concert, exhibition or lecture are to be appropriated to any church or school or to any religious or benevolent purpose; nor shall any license fee be required for the conducting of any entertainment, dance, municipal organization or association whenever the receipts of any such entertainment, dance, concert exhibition or lecture are to be appropriated for the purpose and objects for which such organization or association was formed and from which profit is not derived either directly or indirectly, by any individual; provided, however, that nothing in this section shall be deemed to exempt any such organization or association from complying with any of the provisions of this code requiring a permit from the city council or any commission or officer to conduct, manage, or carry on any profession, trade, calling or occupation.
5.04.230 Exemption—Disabled veterans.
No license fee payable hereunder shall be payable by any person who has received an honorable discharge or release from active duty in one of the United States armed services, who is physically unable to obtain a livelihood by manual labor, and who is a voter of this state.
5.04.240 Exemption—Newspapers, magazines and periodicals.
The provisions of this chapter shall not apply to the publication or sale of newspapers, magazines or other periodicals regularly issued at average intervals not exceeding three months.
5.04.250 Exemption—Businesses subject to franchise, etc.
No business license shall be required of any public utility or other service organization which pays to the city a fee or tax under a franchise or similar agreement.
5.04.260 Exemption—Limited income.
No business license shall be required of a person doing business and drawing social security benefits whose gross receipts do not exceed the maximum income allowed by Title 42, U.S. Code, Section 403(f)(3), as presently written or as amended.
5.04.265 Exemption—Business fee amnesty program.
(A) At the discretion of the city council, a business license fee amnesty program may be conducted to encourage unlicensed businesses to come forward and pay for a current business license.
(B) The business license fee amnesty program shall waive the penalties for a business not having a current business license and for all fees, interest and penalties due for not having a business license during any prior year.
(C) The provisions of the amnesty program shall apply to any person, as defined in Section 5.04.180 of the municipal code, meeting the license fee liability requirement as defined in Section 5.04.020 who files an application for a business license and pays the applicable fee as defined in Sections 5.04.390 through 5.04.430.
5.04.270 Fee adjustments required in cases of interstate commerce.
(A) None of the license fees provided for in this chapter shall be so applied as to occasion an undue burden upon interstate commerce or be violative of the equal protection and due process clauses of the Constitution of the United States and the state.
(B) In any case where a license fee is believed by a licensee or applicant for a license to place an undue burden upon interstate commerce or be violative of such constitutional clauses, he or she may apply to the collector for an adjustment of the fee. Such application may be made before, at, or within six months after payment of the prescribed license fee. The applicant shall, by sworn statement and supporting testimony, show his or her method of business and the gross volume or estimated gross volume of business and such other information as the collector may deem necessary in order to determine the extent, if any, of such undue burden or violation.
(C) The collector shall then conduct an investigation, and after having first obtained the written approval of the city attorney, shall fix as the license fee for the applicant, an amount that is reasonable and nondiscriminatory; or if the license fee has already been paid, shall order a refund of the amount over and above the license fee upon any measure which will assure that the license fee assessed shall be uniform with that assessed on businesses of like nature, so long as the amount assessed does not exceed the license fee as prescribed by this chapter.
(D) The collector may require the applicant to submit, either at the time of termination of applicant's business in the city or at the end of each three-month period, a sworn statement of the gross incomes from local sources upon which a license fee adjustment may be based; provided, that no additional license fee during any one calendar year shall be required after the licensee shall have paid an amount equal to the annual license fee as prescribed in this chapter.
5.04.280 Application—Contents of license.
Every person required to have a license under the provisions of this chapter shall make application for the same to the collector, and upon the payment of the prescribed license fee the collector shall, if appropriate, issue to such person a license which shall contain: (1) the name of the person to whom the license is issued; (2) the business licensed; (3) the place where such business is to be transacted and carried on; (4) the date of the expiration of such license; and (5) such other information as may be necessary for the enforcement of the provisions of this chapter.
5.04.290 Statement of gross receipts.
(A) In all cases where the amount of the license fee to be paid is measured by gross receipts, the applicant for license shall furnish to the collector a sworn statement setting forth such information as is required and as may be necessary to determine the amount of the license fee to be paid by the applicant. Upon making application for the first license to be issued, or for a newly established business, a person shall estimate the gross receipts for the period to be covered by the license to be issued. Such estimate, if accepted by the collector as reasonable, shall be used in determining the amount of license fee to be paid by the applicant.
(B) The applicant for the renewal of a license shall submit to the collector a sworn statement setting forth such information concerning the applicant's business during the preceding year as may be required by the collector to ascertain the amount of the license fee to be paid by the applicant.
5.04.300 Statements not conclusive.
(A) No statements shall be conclusive as to the matters set forth therein, nor shall the filing of the same preclude the city from collecting by appropriate action such sum as is actually due and payable hereunder. Such statement and each of the several items therein contained shall be subject to audit and verification by the collector, his or her deputies, or authorized employees or the city, who are authorized to examine, audit, and inspect such books and records of any licensee or applicant for license, as may be necessary in their judgment to verify or ascertain the amount of license fee due. An inspection of books and records shall be made only when the city manager has determined that there is substantial necessity to do so in order to properly administer this chapter.
(B) All licensees, applicants for licenses, and persons engaged in business in the city are required to permit an examination of such books and records for the purposes aforesaid.
5.04.310 Failure to file or correct statement.
(A) If any person fails to file any required statement within the time prescribed, or if after required by the collector he or she fails to file a corrected statement, the collector may determine the amount of license fee due from such person by means of such information as he or she may be able to obtain.
(B) If such a determination is made the collector shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States post office, postage prepaid, addressed to the person so assessed at his or her last known address. Such person may, within fifteen days after the mailing or serving of such notice, make application in writing to the city clerk for a hearing on the amount of the license fee. If such application is made, the city clerk shall cause the matter to be set for hearing before the city council. The city clerk shall give at least ten days' notice to such person of the time and place of hearing in the manner prescribed above for serving notices of assessment. The council shall consider all evidence produced, and shall make findings thereon, which shall be final. Notice of such finding shall be served upon the applicant in the manner prescribed above for serving notices of assessment.
5.04.320 Appeals.
Any person aggrieved by any decision of the collector or of any other city officer made pursuant to this chapter may appeal to the city council pursuant to the provisions of Sections 2.04.070 through 2.04.100 of this code.
5.04.330 Additional power of collector.
In addition to all other power conferred upon him or her, the collector shall have the power, for good cause shown, to extend the time for filing any required sworn statement for a period not exceeding thirty days, and in such case to waive any penalty that would otherwise have accrued; and shall have the further power, with the consent of the council, to compromise any claims as to amount of license fee due.
5.04.340 No license transferable—Amended license for changed location.
No license issued pursuant to this chapter shall be transferable; provided, that where a license is issued authorizing a person to transact and carry on a business at a particular place, the licensee may apply to amend the license to authorize some other business location upon submittal of a complete application and paying a fee of ten dollars.
5.04.350 Duplicate license.
A duplicate license may be issued by the collector to replace any valid license which has been lost or destroyed upon the licensee filing a statement of such fact and, at the time of filing such statement, paying a duplicate license fee of five dollars.
5.04.360 Posting and keeping licenses.
All licenses shall be kept and posted in the following manner:
(A) Any licensee transacting and carrying on business at a fixed place of business in the city shall keep the license posted in a conspicuous place upon within the business premises.
(B) Any licensee transacting and carrying on business but not operating at a fixed place of business in the city shall keep the license upon his or her person at all times while transacting and carrying on such business in the city.
(C) Any licensee using a motor vehicle in connection with his or her business shall affix on the vehicle in a location prescribed by the city manager, a decal or tag, to be furnished by the city, showing that a current license has been issued.
5.04.370 Method and time of payment.
Unless otherwise specifically provided, all annual license fees shall be due and payable in advance in full on the first business day of January of each year. Quarterly payments shall be made on the first day of the first, fourth, seventh and tenth months of the license term. Quarterly payments may be made only during the twelve-month period following the issuance of the initial license, unless otherwise specifically allowed by other provisions of this chapter.
5.04.380 Penalties for failure to pay fee when due.
For failure to pay a license fee when due, the collector shall add a penalty of ten percent of such license fee on the first day of each succeeding month after the due date; provided, however, the amount of such penalty to be added shall in no event exceed fifty percent of the amount of the license fee due.
5.04.390 License fees—Persons with fixed place of business.
Every person who engages in business at a fixed place of business within the city shall pay a license fee based upon gross receipts at the following rates and in the following classifications:
| Gross Receipts Range | Class A | Class B | Class C |
|---|---|---|---|
| 0 — 10,000 | $ 0.00 | $ 0.00 | $ 0.00 |
| 10,001 — 25,000 | 20.00 | 24.00 | 28.00 |
| 25,001 — 50,000 | 25.00 | 30.00 | 36.00 |
| 50,001 — 100,000 | 30.00 | 36.00 | 43.00 |
| 100,001 — 250,000 | 46.00 | 55.00 | 66.00 |
| 250,001 — 500,000 | 76.00 | 90.00 | 108.00 |
| 500,001 — 750,000 | 114.00 | 135.00 | 162.00 |
| 750,001 — 1,000,000 | 150.00 | 180.00 | 216.00 |
| 1,000,001 — 2,000,000 | 400.00 | 500.00 | 600.00 |
| 2,000,001 — 3,000,000 | 500.00 | 625.00 | 750.00 |
| 3,000,001 — 4,000,000 | 600.00 | 750.00 | 900.00 |
| 4,000,001 — 5,000,000 | 700.00 | 875.00 | 1,050.00 |
| 5,000,001 — 10,000,000 | 1,000.00 | 1,250.00 | 1,500.00 |
| 10,000,001 and up | 1,500.00 | 1,875.00 | 2,250.00 |
Classifications
Class A
Automobile repair and services
Laundry, dry cleaning and garment services
Manufacturing
Retail trade
Wholesale trade
Class B
Amusement and recreation services, including motion pictures
Architectural services
Automotive sales
Barbers and hair stylists
Beauty shops
Engineering services
Landscape and horticultural services
Operators, renters and lessors of commercial property
Services to buildings
All other persons engaged in business not specifically listed elsewhere in this chapter
Class C
Accounting, auditing and bookkeeping services
Financial services
Insurance brokers and services
Legal services
Management and public relations services
Medical and health services
Real estate agents, brokers, managers and services.
5.04.400 License fees—Persons without fixed place of business in the city.
(A) Every person not having a fixed place of business within the city and not being otherwise licensed or classified in this chapter, who delivers any service by the use of vehicles in the city, except general and special construction contractors, shall pay a license fee as follows:
| Capacity | Rate per Vehicle |
|---|---|
| Not exceeding one-half ton | $15.00 |
| One-half to 2 tons | 25.00 |
| Over 2 tons to 3 tons | 50.00 |
| Over 3 tons | 75.00 |
(B) Every person not having a fixed place of business within the city who engages in business within the city and is not subject to the provisions of this section shall pay a license fee at the same rate prescribed in this chapter for persons engaged in the same type of business from and having a fixed place of business within the city.
5.04.410 License fees—Flat rate.
Every person transacting and carrying on the businesses enumerated in this section shall pay a license fee as follows:
Advertising.
(A) Billboards, signs not fixed on places of business: one hundred dollars per structure or sign.
(B) Distributing handbills: one hundred dollars annually, or fifty dollars monthly, or twenty-five dollars daily.
(C) Sound trucks: two hundred dollars annual fee per truck, or fifty dollars daily fee per truck.
(D) Klieg lights: one hundred fifty dollars per year per light, or at licensee's option, fifteen dollars per day per light.
Auctioneers.
Auctioneers not having a fixed place of business in the city, two hundred fifty dollars per year, or at the option of the licensee, twenty-five dollars per day.
Card Rooms.
One hundred fifty dollars per table per year.
Carnivals, Fairs.
Two hundred dollars for the first day and one hundred fifty dollars for each additional day, for the first ten or fewer concessions; plus thirty dollars for the first day and twenty dollars for each additional day for each concession in excess of ten. For the purpose of this section, "concession" means any amusement ride, booth, exhibit, stall, tent, trailer, or stand which charges any fee for the ride, service or product offered.
Circuses.
Two hundred dollars per day.
Commercial Filming.
On city streets or other city property, as follows:
| Persons Employed at Location | Rate per Day |
|---|---|
| 1 — 3 | $100.00 |
| 4 — 6 | 200.00 |
| 7 — 9 | 400.00 |
| 10 and over | 600.00 |
Traffic-control costs or any additional costs as required by the chief of police shall be paid entirely by the applicant.
Contractors.
Every person engaged in the business of contracting which requires a state contractors' license shall pay a business license as follows:
(A) General contractors, one hundred dollar annual fee;
(B) Subcontractors, fifty dollar annual fee;
(C) Business licenses for general contractors and subcontractors may be obtained semi-annually.
Living Accommodations.
Every person transacting or engaged in the rental of four or more dwelling units in any apartment house, roominghouse, houses for rent, or other living accommodations shall pay an annual fee of twelve dollars per unit, provided that hotels and motels shall be on the gross receipts basis, Class B.
Mobilehome, Trailer and Recreational Vehicle Parks.
Twelve dollars per space per year.
Peddlers and Solicitors.
(A) Principal, two hundred dollar annual fee.
(B) Each additional solicitor or peddler, ten dollars quarterly.
Sales Representatives.
Every person engaged in the business of soliciting of orders for sales or services by a nationally franchised business (such as AVON) wherein solicitation only occurs by previous appointment, shall pay a business license fee of twenty-five dollars per year.
Taxicabs.
(A) Taxicab operator's license, sixty dollar annual fee;
(B) Taxicab vehicles, per vehicle, twenty-five dollar annual fee.
5.04.420 Coin-operated machines.
Every person operating and or more vending machines, coin-operated amusement device, shuffleboard, jukebox or other similar device, shall pay a license fee based on the entire gross receipts from all of such machines operated within the corporate limits of the city in accordance with the schedule set forth in Section 5.04.390, Class B.
5.04.430 Waiver or reduction of fees or penalties by city manager.
The city manager, for good and satisfactory cause shown, may on a case by case basis, waive business license penalties and interest up to $1,000. As a condition of receiving the penalty and interest waiver, the business would be required to pay any business license fees in arrears up to a maximum of three prior years.
5.04.435 Waiver or reduction of fees or penalties by council.
The council, for good and satisfactory cause shown, may order the issuance of a license for less than the fees provided in this chapter or without the payment of any fee whatsoever.
5.04.440 Rules and regulations.
The collector may make such rules and regulations not inconsistent with the provisions of this chapter as may be necessary or desirable to supplement or clarify such provisions or aid in their enforcement. Such rules and regulations shall be known as "business license rules and regulations," shall be placed in written form and numbered consecutively, and shall be approved by the city attorney before becoming effective. A copy of each such "business license rules and regulations" shall be filed with the city manager and with the city clerk.
Chapter 5.05 SPECIAL EVENTS
5.05.010 Intent and purpose.
The intent of this chapter is to provide a regulatory framework for permitting special events and temporary outdoor promotions. The use of private property, city streets or other city-owned or controlled property by large groups causes wear and tear on turf, park equipment and facilities, and requires city staff time to provide support services, such as traffic control. Such uses can also subject neighboring residents and businesses to noise and traffic. The purpose of this chapter is to ensure that special events and temporary outdoor promotions are conducted so as not to violate any other ordinance or regulation of the city, or cause detrimental effects to surrounding properties and the community-at-large. It is the intent of the city to protect the rights of the people to engage in expressive activities in the city's public places, as well as to regulate the time, place and manner of these activities in a reasonable and minimally restrictive fashion.
5.05.020 Definitions.
"Air-medical operations permit" means a permit issued by the fire chief or designee, allowing the landing and takeoff of EMS air rescue or air ambulance helicopters for the purposes of special event stand-by services.
"Applicant" means the person, corporation, association, partnership or other legal entity submitting the application for a special event or temporary outdoor promotion permit.
"Chief of police services" means the chief of police services of the city of American Canyon, or designee.
"City" means the city of American Canyon.
"City manager" means the city manager of the city of American Canyon, or designee.
"Departmental service charges" means the actual costs which a department of the city incurs in connection with activities for which a special event or temporary outdoor promotion permit is required under this chapter, including, but not limited to, costs associated with fire safety, traffic and/or pedestrian control, water safety, the closure of streets or intersections, the diverting of traffic, the salaries of city personnel involved in administration or coordination of city services for the event, the cost to the city to provide support personnel, equipment, materials and supplies and related city costs, such as fringe benefits or employee overtime. Departmental service charges shall not include costs incurred by the city to provide ordinary levels of police protective services to those engaged in activities or conduct for which a special event or temporary outdoor promotion permit is required pursuant to this chapter.
"Event organizer" means any person who conducts, manages, promotes, organizes, aids or solicits attendance at a special event or temporary outdoor promotion.
"Expressive activity" means conduct protected by the First Amendment of the United States Constitution or Article 1, Section 2 of the California Constitution, which is the principal purpose of the event.
"Fire chief" means the American Canyon fire protection district fire chief, or designee.
"Indigent natural person" means a person eligible for relief and support in the county of Napa as an indigent person under Section 17000 et seq., of the California Welfare and Institutions Code, or as the/those section(s) is/are amended from time to time.
"Medical operations permit" means a permit issued pursuant to the California Health and Safety Code, which gives the city the right to require and evaluate, modify, approve or reject the medical operations plan of any applicant wishing to conduct a special event within the city.
"Parade" means a parade, procession, march, demonstration, motorcade, promenade or pageant consisting of persons, animals or vehicles, or any combination thereof, traveling in unison and having a common purpose, design, destination or goal, which is conducted in, on, upon, or along any public street, sidewalk or other property owned or controlled by the city, or any portion thereof, which does not comply with normal and usual traffic regulations or control, or which may impede, obstruct, impair or interfere with the free use of such public street, sidewalk or other public property of the city.
"Person" means any natural person, firm, association, joint venture, joint stock company, partnership, organization, club, company, corporation, business trust or manager, lessee, agent, servant, officer or employee, or any of them, except where the context clearly requires a different meaning.
"Public assembly" means any group of sixty or more persons participating in an organized activity having a common purpose on or within a city street, city park, parking facility, sidewalk, or other public property or right-of-way.
"Sidewalk" means that portion of a highway, other than the roadway, set apart by curbs, barriers, markings, or other delineation for pedestrian travel.
"Special event" means:
1. Any temporary event not exceeding thirty days, whether indoors or outdoors, involving thirty or more persons, which is inconsistent with the permanent use to which the property may legally be put, or the occupancy levels permitted on property; or
2. Any public assembly as defined in this section; or
3. Any event, regardless of the number of persons involved, requiring full or partial street closure, which occurs on a city street, sidewalk, alley, or other public right-of-way, and/or which is likely to obstruct, delay or interfere with the normal flow of pedestrian or vehicular traffic.
The following list of examples is illustrative, but not determinative, of activities that may constitute "special events":
1. Motorized vehicle races or contests.
2. Carnivals, circuses, fairs, festivals, nondomesticated animal act or exhibition, and similar activities.
3. Any event with mechanical amusement rides.
4. Promotional or fundraising activities.
5. Parades.
6. Outdoor shows, concerts and exhibitions.
7. Outdoor craft fairs, soapbox derbies, or other similar events.
"Special event permit" or "permit" means a special event permit issued pursuant to this chapter.
"Spontaneous special event" means a special event that is also an expressive activity, which is precipitated by news, circumstances or events coming into public knowledge fewer than thirty working days before the proposed spontaneous special event.
"Street" means a way or place, of whatever nature, publicly maintained and open to use of the
public for purposes of vehicular travel. Streets include highways and alleys.
"Temporary outdoor promotion" means an outdoor commercial event of limited duration, such as grand openings, outdoor sales, and seasonal promotions occurring on nonresidential, private property.
"Temporary outdoor promotion permit" means a temporary outdoor promotion permit issued pursuant to this chapter.
"Venue" means the specific property, area or site for which a special event permit has been issued.
"Working day" shall mean a weekday, e.g., Monday through Friday, in which City Hall is open and conducts business. Saturdays, Sundays and holidays are not working days within the meaning of this chapter.
5.05.030 Permit required.
(A) It shall be unlawful for any person to conduct, operate, maintain, organize, advertise, or sell or furnish tickets to any special event or temporary outdoor promotion within the city of American Canyon subject to the provisions of this chapter, and not expressly exempt under Section 5.05.040, without having obtained a valid permit for the event.
(B) Issuance of a permit pursuant to this chapter does not obligate or require the city to provide city services, equipment or personnel in support of an event, although the city manager may provide such services, equipment or personnel if such are reasonably available and the event organizer makes provisions to reimburse the city for the cost.
5.05.035 Special event permit.
(A) A special event permit is required for any special event, as defined in Section 5.05.020, having any of the following characteristics:
(1) Involves the use of public property or facilities or has a substantial impact on traffic, public property or facilities in a way that may require the provision of city public services in response; and/or
(2) Creates noise in excess of the standards set forth in Chapter 8.12 ("Noise Control"); and/or
(3) Involves the use of any pyrotechnic device as defined in the California Health and Safety Code; and/or
(4) Involves the construction or installation of any temporary or permanent tents, canopies or other structures, if the construction or installation requires a permit from the city's fire and/or community development department; and/or
(5) Involves the use of any exotic or nondomesticated animals, or mechanical amusement rides.
5.05.040 Exceptions to the special event permit.
(A) A special event permit is not required for any of the following special events:
(1) An event conducted in or on residential property in a residential zone so long as the event conforms to other provisions of the municipal code.
(2) Block parties that conform to the other provisions of the municipal code.
(3) Funeral processions by a licensed mortuary or funeral home.
(4) Any activities or events held or conducted by or on behalf of a public or private school, a college or school district, the state of California or other governmental entity otherwise exempt from the provisions of this chapter under separate provision of law.
(5) Events involving expressive activity, including but not limited to, lawful picketing, which takes place on public sidewalks owned or controlled by the city, provided that participants comply with applicable traffic regulations, laws or controls.
5.05.045 Temporary outdoor promotion regulations.
(A) Temporary outdoor promotions, as defined in Section 5.05.020, require permits issued pursuant to this chapter.
(B) Temporary outdoor promotions are limited to ten consecutive days per event and a maximum of four events per year, unless provided otherwise in an approved design permit under Chapter 19.41.
(C) Temporary outdoor promotion permits shall be issued only to approved permanent establishments in the city for on-site use. The proposed events and activities shall occur in conjunction with the principal use of the establishment or as an extension thereof.
(D) Signage for temporary outdoor promotions shall comply with the sign ordinance in Chapter 19.23.
(E) All signage and lighting associated with the temporary outdoor promotion shall be included on the plans.
(F) The permit applicant must demonstrate that adequate on-site parking spaces will remain available for customer parking.
(G) All disabled-accessible parking spaces, walkways, ramps, ingress, and egresses must remain available.
5.05.050 Application for permit.
(A) An application for a special event or temporary outdoor promotion required by this chapter shall be filed with the city manager on a form furnished by, or acceptable to, the city manager, and signed by the applicant under penalty of perjury. If the application is filed by an organization, the application shall be prepared, signed under penalty of perjury, and filed by an officer of such organization, who is not less than eighteen years of age. An indigent natural person may only apply on his or her own behalf and cannot apply on behalf of another person, corporation, association, partnership or other legal entity.
(B) A completed application for a special event permit shall be filed not less than thirty working days, nor more than six months, prior to the opening date of the proposed special event. However, it is recommended that a completed application be filed at least ninety calendar days prior to the proposed special event to accommodate unforeseen circumstances or delays.
(C) A completed application for a temporary outdoor promotion permit shall be filed not less than ten working days, nor more than six months, prior to the proposed temporary outdoor promotion. If the city manager denies the special event or temporary outdoor promotion permit, the event organizer or other affected person may appeal the denial to the city council under Section 5.05.100. Once any decision of the city council on appeal becomes final, the event organizer or other affected person may then file a petition for writ of mandate pursuant to California Code of Procedure Section 1094.6 or 1094.8 regarding the validity of the city's decision to grant or deny the application.
(D) An application will be deemed complete unless, within three working days, the applicant is given notice that the application is incomplete and told what information is missing. Notwithstanding the city manager's acceptance of a completed application, no special event or temporary outdoor promotion permit date shall be considered confirmed until a special event or temporary outdoor promotion permit is issued pursuant to Section 5.05.080.
(E) No application filed for a special event proposed to be scheduled fewer than thirty working days from the filing of an application will be accepted, except for an application for a spontaneous special event.
(1) An event organizer must give written notice to the city manager at least forty-eight hours in advance of any proposed spontaneous special event. Such written notice must contain all of the following information:
(a) The name, address and telephone number of the person or persons seeking to conduct the spontaneous special event, which person or persons shall be considered the applicant for purposes of this subsection.
(b) The name, address and telephone of the headquarters of the organization, if any, and of the organizer or responsible head of such organization by whom or on whose behalf the spontaneous special event is proposed to be conducted.
(c) The name, address and telephone number of the person who will chair the spontaneous special event and who will be responsible for the conduct of the participants.
(d) The location and date of the spontaneous special event, including the assembly area, disbanding area, and the route to be traveled, if applicable.
(e) An estimate of the approximate number of persons who will be participating in the spontaneous special event and an estimate of the approximate number of persons who will be observing the spontaneous special event.
(f) The time at which the spontaneous special event will begin and conclude.
(g) The type of security or other arrangements that will be provided to assure that participants are properly directed.
(h) The application shall be accompanied by a declaration under penalty of perjury demonstrating that the failure to submit a timely application was not within the applicant's control because the precipitating news, circumstances or events did not exist, or could not have been known to the applicant in time to file a timely application under this chapter.
(2) The city manager may impose reasonable time, place and manner restrictions on the spontaneous special event.
(3) The city manager may deny permission to conduct a spontaneous special event if he or she makes a written finding requiring denial pursuant to Section 5.05.090 within twenty-four hours of receipt of the application. If the city manager makes a finding pursuant to Section 5.05.090, he or she shall immediately provide notice of the denial, including the reason or reasons for the denial, by telephone and in writing, to the applicant. In lieu of denial, the city manager may propose to the applicant an alternative time, route, venue or manner of conducting the activity which would be acceptable to the city and would obviate any finding made pursuant to Section 5.05.090. Once the city manager makes his or her final determination whether to deny or grant the permit, the applicant may file a petition for writ of mandate pursuant to California Code of Civil Procedure Section 1094.6 or 1094.8 challenging the validity of the city manager's decision.
(4) The applicant will be charged for the actual costs incurred for any increases in the cost of services attributable to the shortened review period. Such costs may include, but are not limited to, any staff overtime.
5.05.060 Permit and application fee.
(A) All applications shall be submitted with payment of a nonrefundable application fee established by resolution of the city council, as may be amended from time to time, unless said special event or temporary outdoor promotion is funded in full or in part by the city as an applicant, or said fee is waived by the city council. Any application submitted without said application fee shall be deemed incomplete.
(B) Any indigent natural person who cannot apply for a special event permit because of an inability to pay the required application fee due to such indigence shall not be required to pay said application fee set forth in subsection A. Application for indigent status shall be made at the time of submission of the special event permit application and shall be accompanied by such relevant information and documentation as may, in the opinion of the city manager, be reasonably necessary to verify such status.
5.05.070 Application contents.
(A) Applications for all special event and temporary outdoor promotion permits shall contain the following information, as deemed applicable:
(1) The name, address and telephone number of the applicant, the event organizer and an alternative person who may be contacted if the event organizer is unavailable.
(2) If located on private property, signed approval from the property owner acknowledging application for a special event or temporary outdoor promotion.
(3) If the applicant is an organization or business, the name, address and telephone number of the organization or business and the authorized head of the organization or business shall be provided. The person designated as the applicant by an organization or business shall provide written authorization from the organization or business verifying such designation.
(4) The name, address and telephone number of the person who will be present and in charge of the special event or temporary outdoor promotion on the day of the event.
(5) A description of the nature or purpose of the special event or temporary outdoor promotion for which the special event or temporary outdoor promotion permit is requested and an estimate of the maximum number of persons who will be attending the event.
(6) Date(s) and estimated starting and ending time(s) of the special event or temporary outdoor promotion.
(7) Location of the special event or temporary outdoor promotion, including its boundaries, the street or other public property, and the specific area or areas, that will be utilized in connection with the proposed event, or, if on private property, the business name, street address and telephone number at which the event or activity will be conducted.
(8) The type and estimated number of vehicles, animals or structures that will be used at the special event or temporary outdoor promotion.
(9) The provision and/or operation of first aid or emergency aid stations at the special event or temporary outdoor promotion.
(10) The provision and/or operation of sanitary facilities, including handicap accessible sanitary facilities.
(11) Whether any food or beverages, including alcoholic beverages, will be sold at the special event or temporary outdoor promotion.
(12) The type of security or other arrangements that will be provided: (a) to ensure that participants are properly directed; and (b) to ensure the prevention of unlawful conduct by participants and attendees.
(13) Anticipated parking needed and parking plan for the special event or temporary outdoor promotion.
(14) A proposed plan for seating for the special event or temporary outdoor promotion, if applicable, and the maximum legal occupancy of the proposed premises, if applicable.
(15) A security plan, including the provision and use of traffic cones or barricades, for control of pedestrian and vehicular traffic.
(16) Whether sound amplification equipment will be used and a plan for control of noise, including, but not limited to, the noise generated by amplification equipment, motors and other equipment that may affect nearby premises, with special attention to prevention of noise nuisance to nearby residences, if any, subject to the noise standards set forth in Section 12.04.180.
(17) A detailed floor plan and site plan of the premises showing the building interior and exterior grounds, including parking spaces, amusement ride location, seating arrangements, dance floor area, bar location, fire exits, and the dimensions of each portion with the layout of the special event or temporary outdoor promotion, when applicable. A trash and litter collection and off-site disposal plan.
(18) The manner of providing notice of the special event or temporary outdoor promotion conditions to special event or temporary outdoor promotion participants and those businesses or residents who may be directly affected by the conduct of the special event or temporary outdoor promotion.
(19) Such other information pertaining to public health and safety that the applicant may wish to include.
(20) The application form shall inform the applicant of his or her right to appeal.
(B) The application for special events, such as parades or public assemblies, which require full or partial street closures, shall, in addition to the above information requirements, contain the following information:
(1) The assembly point for the special event and the time at which people and/or units of the special event will begin to assemble and the location of the disbanding area.
(2) The proposed route to be traveled, including the maximum length of the special event in miles or fractions of miles.
(3) Whether the parade or other special event will occupy all or only a portion of the streets proposed to be traveled.
(4) An estimate of the approximate number of persons who will be participating in the special event and an estimate of the approximate number of persons who will be observing the special event.
(5) If the special event assembly or disbanding is to be conducted on private property, the applicant must submit, with the application, proof of the property owner's permission for the property to be used for that purpose.
(C) Medical Operations Permit. A special medical operations permit shall be required for any special event where, in the opinion of the fire chief, it is essential for public safety in a place of assembly or any other place where people congregate, due to the number of persons participating in the special event or the projected impact to the emergency medical services system within the city. Where required, the special event applicant shall submit for approval to the fire chief a medical operations plan in accordance with the criteria established by the American Canyon fire protection district. This plan may require the permit applicant to employ one or more medically qualified persons, including medically trained fire department personnel, as required and approved, to be on duty at such a place. Such individuals shall be subject to the fire chief's orders, at all times when so employed and shall be in uniform and remain on duty during times that such places are open to the public, or when such activity is being conducted. Before the special event, such fire authority personnel shall inspect the required medical equipment to see that it is in the proper place and in good working order, and shall keep a diligent watch for medical emergencies during the time such place is open to the public or such activity is being conducted. Events that may require a special medical operations permit include, but are not limited to:
(1) Any event in which specialized emergency medical services are provided above the level of advanced first aid, such as emergency medical technician-1, paramedics, nurses, physician assistants, and/or physicians.
(2) Any event, by the rules of the event, which requires the need to have contract emergency ambulance service providers or personnel on-site in order to conduct such event, e.g., bicycle races or similar high-risk injury activities.
(3) Any event utilizing standby air rescue or air ambulance services.
(4) Any event the fire chief deems may adversely impact the emergency medical services response capability of the city based upon:
(a) The location of the event;
(b) Projected event participation; or
(c) Any other applicable criteria.
(D) Air-Medical Operations Permit Required. A special air-medical operations permit shall be required for all events utilizing standby air rescue or air ambulance services. The fire chief shall direct the landings and takeoffs of all EMS air rescue or air ambulance operations within the city. Standby fire authority and/or sheriff department resources may be required during landing or takeoff operations for safety and security reasons. An air-medical operations plan, if required, shall be submitted, subject to the approval of the fire chief to include the following information:
(1) Name of the air rescue or air ambulance provider.
(2) Contact person for air operations.
(3) Type and size of aircraft.
(4) Patient transport capability.
(5) Level of medical staffing.
(6) Frequency or list of frequencies available for ground-to-air contact.
(7) Landing zone site and alternate landing zone site.
(8) Security for landing zone site.
5.05.080 Action by city manager.
(A) The city manager is authorized to issue special event and temporary outdoor promotion permits pursuant to the procedures established in this chapter.
(B) Notwithstanding any provision in the American Canyon Municipal Code to the contrary, the city manager is authorized to close any street, or portion thereof, as part of the issuance of a special event permit or temporary outdoor promotion permit when necessary to further the purpose of the underlying event and protect the health and safety of the public.
(C) Upon the filing of a completed application, the city manager shall refer the application to such appropriate city departments, as he or she deems necessary from the nature of the application, for review, evaluation, investigation and recommendations by the departments regarding approval or disapproval of the application and the estimated number of hours of service that will be incurred by each department in connection with the special event or temporary outdoor promotion.
(D) In determining whether to approve an application, no consideration may be given to the message of the event, the content of speech, the identity or associational relationships of the applicant, or to any assumptions or predictions as to the level or nature of emotion which may be aroused in the public by the content of speech or message conveyed by the event.
(E) Within ten working days of the filing of a completed application, the investigation shall be completed, and the city manager shall issue a special event or temporary outdoor promotion, unless denial of the special event or temporary outdoor promotion is mandated under Section 5.05.090. The city manager shall notify the applicant of his or her action pursuant to Section 5.05.100.
(F) The city manager shall impose conditions on any special event issued pursuant to this chapter to coordinate multiple uses of public property, assure preservation of public property and public places, prevent dangerous, unlawful or impermissible uses, and protect the safety of persons and property and to control vehicular and pedestrian traffic in and around the venue. The city manager shall impose conditions on the temporary outdoor promotion permit to prevent negative impacts to surrounding persons and properties and to ensure compliance with provisions of the municipal code. The conditions on a special events permit shall be reasonable time, place and manner restrictions only and shall not be imposed in a manner that will unreasonably restrict activities or conduct protected by the California or United States Constitutions. Conditions may include, but are not limited to, the following:
(1) The establishment of an alternate assembly or disbanding area for a parade, or similar event, within the predesignated event routes established by the city council pursuant to Section 5.05.130;
(2) The accommodation of a special event's pedestrian and vehicular traffic, including restricting special events to city sidewalks, portions of a city street, or other public right-of-way;
(3) Conditions designed to avoid or lessen interference with public safety functions and/or emergency service access;
(4) The event shall comply with all applicable accessibility requirements, including, but not limited to, parking, walkways, ingress, egress, restrooms, ramps, seeing and hearing devices, etc.;
(5) The number and type of vehicles, animals, or structures to be displayed or used in the special event or temporary outdoor promotion;
(6) The inspection and approval by city personnel of stages, booths, floats, structures, vehicles or equipment to be used or operated in the special event or temporary outdoor promotion to ensure that such structures or vehicles are safely constructed and can be safely operated, and conform to the requirements of all applicable codes;
(7) The provision and use of traffic cones or barricades in a manner and number established by standard conditions adopted by a separate city council resolution;
(8) The provision or operation of first aid stations or sanitary facilities, including handicap accessible sanitary facilities, in a manner and number established by standard conditions adopted by a separate city council resolution;
(9) The provision of a waste management plan, and the clean-up and restoration of the special event or temporary outdoor promotion venue, as established by standard conditions adopted by a separate city council resolution;
(10) Restrictions consistent with the city's noise ordinance on the use of sound amplification equipment, and restrictions on the amount of noise generated by motors and other equipment used in the course of the special event or temporary outdoor promotion;
(11) The manner of providing notice of the special event or temporary outdoor promotion conditions to special event or temporary outdoor promotion participants and those businesses or residents who may be directly affected by the conduct of the special event or temporary outdoor promotion;
(12) The provision or use of emergency services;
(13) The obtaining of all applicable permits and licenses, including, but not limited to, building and electrical permits, American Canyon fire protection district approval, health department, department of alcohol and beverage control, etc.;
(14) The manner by which alcohol sales and service, if any, shall be conducted at the event;
(15) No special event permit or temporary outdoor promotion permit issued under the provisions of this chapter shall be transferable or movable to another venue or another applicant.
5.05.090 Permit denial.
(A) The city manager shall deny an application for a special event or temporary outdoor promotion or revoke any special event or temporary outdoor promotion if the city manager finds any of the following:
(1) The application contains materially false or intentionally misleading information;
(2) The event or activity is proposed to be located, or is located, in or upon a premises, building or structure, which is hazardous to the health or safety of the employees or patrons of the premises, business, activity, or event, or the general public, under the standards established by the Uniform Building or Fire Codes, or other applicable codes, as set forth in Title 16 of this code;
(3) The event or activity is proposed to be located, or is located, in or upon a premises, building or structure, which lacks adequate on-site parking for participants attending the proposed event or activity under the applicable standards set forth in Title 19 of this code;
(4) The event or activity is in conflict with other applicable provisions of any federal, state and/or local laws;
(5) The event or activity is scheduled to occur at a location and time in conflict with another event or activity scheduled for the same day or weekend, where such conflict would adversely impact the city's ability to provide adequate city services in support of other scheduled events or scheduled government functions;
(6) The event will substantially interrupt public transportation, or other vehicular and pedestrian traffic, in the area of its location;
(7) The event will require the diversion of public safety or other city employees from their normal duties, so as to unreasonably reduce adequate levels of service or municipal functions to any other portion of the city;
(8) The concentration of persons, animals or vehicles will unreasonably interfere with the movement of police, fire, ambulance, and other public safety or emergency vehicles on the streets;
(9) The event or activity: (a) will have a substantial adverse impact on the health and safety of the general public, and/or residents and businesses within a five hundred foot radius of the event; and/or (b) will violate the city's noise ordinance;
(10) The event or activity will take place in an area of the city, or on any public right-of-way scheduled for maintenance, construction or repair prior to the submission of the application for the event and either (a) the conduct of the event would interfere with such maintenance, construction or repair; or (b) the maintenance, construction or repair would represent a threat to the health or safety of the participants in the event;
(11) The ability of persons to enter and exit residential or business properties impacted by the event will be unreasonably impaired considering factors such as the duration, size and scope of the event;
(12) The proposed use, event or activity will have a significant adverse environmental impact;
(13) The applicant has violated condition(s) of a previous special event or temporary outdoor promotion permit issued for the same or similar event or has more than one documented violation of this chapter within the prior thirty-six months. The city shall notify the applicant in writing of any such violations within sixty days of the violation.
(B) When the grounds for denial of an application are based on any of the circumstances specified in subsections (A)(1) through (A)(13) of this section, and those circumstances can be corrected by altering the date, time, duration, route, or location of the special event or temporary outdoor promotion, the city manager shall, instead of denying the application, conditionally approve the application upon the applicant's acceptance of conditions for special event or temporary outdoor promotion permit issuance. The conditions imposed shall provide only for such modification of the applicant's proposed special event or temporary outdoor promotion as are necessary to achieve compliance with subsections (A)(1) through (A)(13) of this section.
5.05.100 Notice to applicant of action on application—Appeals to city council.
Within ten working days of the filing of a completed application, the city manager shall provide notice to the applicant of the action taken by telephone and by written notice via personal delivery, facsimile, if the applicant provides a fax number, or electronic mail, if the applicant provides an electronic mail address, together with a list of conditions imposed if the application has been granted or, if the application has been denied, the specific factual reason for the denial pursuant to Section 5.05.090. The city manager shall also provide notice to the city council. For special event or temporary outdoor promotion permits, the notice shall inform the applicant of his or her right to appeal to the city council the denial of the application, or any of the conditions imposed on the granting of the application, and shall state the last date on which such an appeal may be filed, which shall be the third working day after the date on which the notice was delivered personally or via facsimile to the applicant. The city council shall hear the applicant's appeal no later than fourteen days following its filing at a regular meeting, if scheduled, or a special meeting, if necessary. The applicant, by written request, may waive the time limits for the hearing on appeal to the city council, but may not waive the time within which an appeal may be filed. The notice of the city manager's decision on a spontaneous special event permit or the city council's final decision on an appeal of a special event or temporary outdoor promotion permit shall inform the applicant of his or her right to file a petition for writ of mandate pursuant to California Code of Civil Procedure Section 1094.6 or 1094.8.
5.05.110 City council action upon appeal.
After a hearing and consideration of the report and decision of the city manager on a special event or temporary outdoor promotion application, and any written materials submitted by the applicant or other affected person(s), the city council shall either overturn the denial and grant the special event or temporary outdoor promotion permit, grant the special event or temporary outdoor promotion permit with conditions, or sustain the denial of the special event or temporary outdoor promotion permit upon determining that issuance would result in any one of the circumstances set forth in Section 5.05.090. The decision on appeal by the city council shall be based on written findings, and shall be final and conclusive on the matter. Upon the decision on appeal by the city council, the applicant may file a petition for writ of mandate pursuant to California Code of Civil Procedure Section 1094.6 or 1094.8.
5.05.120 Departmental service fees.
(A) In addition to the nonrefundable permit application fee, any user fees or other fees prescribed by resolution of the city council, an applicant shall pay the city for all city department service charges incurred in connection with, or due to, the applicant's activities under the special event or temporary outdoor promotion permit. If city property is destroyed or damaged by reason of the applicant's use, event or activity, the applicant shall reimburse the city for the actual replacement or repair cost of the destroyed or damaged property.
(B) Departmental service fees will be established by a separate city council resolution, and will reflect the city's full cost of providing personnel on an hourly basis at rates established in accordance with city personnel rules and regulations and conditions contained within memoranda of understanding between the city and employee labor organizations.
(C) At least two days prior to a special event or temporary outdoor promotion permitted under this chapter, the applicant shall pay to the city a deposit in an amount sufficient to cover the total estimated city departmental service charges identified pursuant to this section that will be incurred by the city in connection with the special event or temporary outdoor promotion. The deposit shall be paid in cash or other adequate security, as determined by the city manager. An applicant may appeal pursuant to Section 5.05.100 the amount of the deposit determined under this section.
(D) City departments shall submit the final invoices and billings for departmental service charges to the applicant no later than twenty working days after the expiration date of the special event or temporary outdoor promotion permit. If the deposit is less than the final charges, the applicant shall pay the difference to the city within ten working days of being invoiced for such charges from the city. If the deposit is more than such final charges, the city shall refund the difference to the applicant within the sixty days after the event.
(E) Any indigent natural person who cannot apply for a special event permit because of an inability to pay the required departmental service charges due to such indigence shall not be required to pay the departmental service charges set forth in this section. Application for indigent status shall be made at the time of submission of the special event application and shall be accompanied by such relevant information and documentation as may, in the opinion of the city manager, be reasonably necessary to verify such status.
5.05.130 Event routes.
(A) The city council may, by separate resolution, establish predesignated special event routes within the city for those events requiring either full or partial street closures.
(B) Any special event requiring full or partial street closures shall not be conducted on streets classified by the city as arterial streets between the hours of 7:00 a.m. to 9:00 a.m. and 4:00 p.m. to 7:00 p.m. Monday through Friday, excluding holidays.
5.05.140 Insurance and indemnity requirements.
(A) For all special events subject to the requirements of this chapter, the city manager shall require as a condition of the issuance of a permit that the applicant shall obtain, furnish proof of, and maintain, a policy of insurance issued by an insurance company authorized to do business in the state of California. The insurance policy shall be endorsed to name the city of American Canyon and its elected and appointed boards, officers, agents, and employees as an additional insured, and shall provide that any other insurance maintained by the city of American Canyon shall be in excess of, and not contributing to, the insurance coverage provided to the city of American Canyon under the applicant's policy. The minimum limits of liability shall conform to a schedule which shall be adopted by a separate resolution of the city council; provided, however, that in no case shall the minimum limits of liability be lower than one million dollars, combined single limits, per occurrence and in the aggregate.
(B) The applicant of special events shall also be required to sign an indemnity agreement in a form approved by the city attorney, which shall expressly provide that the applicant agrees to defend, protect, indemnify and hold the city, its officers, employees and agents free and harmless from and against any and all claims, damages, expenses, loss or liability of any kind or nature whatsoever arising out of, or resulting from, the alleged acts or omissions of applicant, its officers, agents or employees, in connection with the permitted event or activity; and the special event or temporary outdoor promotion permit shall expressly provide that the applicant shall, at applicant's own cost, risk and expense, defend any and all claims of legal action that may be commenced or filed against the city, its officers, agents or employees, and that the applicant shall pay any settlement entered into and shall satisfy any judgment that may be rendered against the city, its officers, agents or employees as a result of the alleged acts or omissions of applicant or applicant's officers, agents or employees in connection with the uses, events or activities under the special event or temporary outdoor promotion permit. If an applicant provides proof that the insurance obligations, pursuant to subsection A of this section, provide contractual liability providing coverage for any obligations contemplated by the indemnity provisions herein, the city agrees not to enforce the indemnity agreement against the applicant.
(C) Any indigent natural person who cannot apply for a special event permit because of an inability to pay for the required insurance due to such indigence shall not be required to provide the insurance obligations set forth in subsection A, or to sign an indemnity agreement required by subsection B. Application for indigent status shall be made at the time of submission of the special event permit application and shall be accompanied by such relevant information and documentation as may, in the opinion of the city manager, be reasonably necessary to verify such status.
5.05.150 Revocation or suspension of permit.
(A) A special event or temporary outdoor promotion permit issued under this chapter shall be revoked or suspended by the city manager or chief of police services if he or she finds that one or more of the following conditions exist and have not been corrected by the applicant after timely notice of the condition's existence has been given:
(1) The special event or temporary outdoor promotion is being used to conduct an activity different from that for which it was specifically issued;
(2) That one or more of the conditions listed in Section 5.05.090 exists;
(3) That the activity is being conducted in a manner which violates one or more of the conditions imposed upon the issuance of the special event or temporary outdoor promotion permit or fails to conform to the plans and procedures described in the application;
(4) The applicant violates or attempts to violate any federal, state or local laws and regulations;
(5) The special event or temporary outdoor promotion is being conducted in a fraudulent or disorderly manner, or in a manner which endangers the public health or safety.
(B) Such revocation or suspension shall become effective immediately upon order of the city manager or chief of police services and shall remain in effect until the applicant has corrected the violation or until the special event or temporary outdoor promotion permit has expired by limitation.
(C) In the event a special event or temporary outdoor promotion permit is revoked or suspended pursuant to the provisions of this section, another special event or temporary outdoor promotion permit shall not be granted to the applicant within twelve months after the date of such revocation or suspension.
(D) The city manager or chief of police services' determination to revoke or suspend a special event or temporary outdoor promotion permit shall be based upon written findings, and shall be subject to appeal to the city council as set forth in Section 5.05.100. The city council's determination shall be final and conclusive in the matter, and subject to appeal under California Code of Civil Procedure Section 1094.6 or 1994.8.
5.05.160 Interference prohibited.
It is unlawful for any person to obstruct, impede or interfere with any authorized person, vehicle or animal participating in a special event or temporary outdoor promotion for which a permit has been issued.
5.05.170 Penalty for violation.
(A) A violation of this chapter shall be considered a misdemeanor. However, at the discretion of the city attorney, the violation of any provisions of this chapter may be filed as an infraction. The complaint charging such violation shall specify whether the violation is a misdemeanor or an infraction.
(B) Unless expressly exempt, the holding or conducting of any special event or temporary outdoor promotion subject to the provisions of this chapter without a valid special event or temporary outdoor promotion permit issued pursuant to the provisions of this chapter is hereby declared a public nuisance.
5.05.180 Severability.
If any provision or clause of this chapter, or the application thereof to any person or circumstance, is held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, such invalidity shall not affect other chapter provisions, clauses, or application thereof, and to this end, the provisions and clauses of this chapter are declared to be severable.
Chapter 5.06 ADULT-ENTERTAINMENT BUSINESSES, ADULT PERFORMERS AND FIGURE MODELS
5.06.010 Legislative purpose.
It is the purpose of this chapter to regulate adult-entertainment businesses in order to promote the health, safety, morals and general welfare of the citizens of the city. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials or communicative conduct, including adult-entertainment business products and adult entertainment communicative conduct. Similarly, it is not the intent or effect of this chapter to restrict or deny access by adults to adult entertainment business products or adult entertainment communicative conduct protected by the First Amendment, or to deny access by the distributors and exhibitors of adult entertainment business products or adult entertainment communicative conduct to their intended market or audience. It is neither the intent nor effect of this chapter to condone or legitimize the distribution of obscene material.
5.06.020 Definitions.
For the purpose of this chapter, the following words and phrases are defined as follows:
"Adult-entertainment business" means any of the following:
1. "Adult arcade" means an establishment where, for any form of consideration, one or more still or motion picture machines, projectors or other image producing devices are maintained to show images to five or fewer persons per machine at any time, and where a substantial portion of the images so displayed are distinguished or characterized by an emphasis on matters depicting or describing specified sexual activities.
2. "Adult bookstore, adult novelty store or adult video store" means a commercial establishment that, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, compact discs (CDs), slides or other visual representations that are distinguished or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas; or
b. Instruments, devices or paraphernalia that are designed for use in connection with specified sexual activities.
The items described in subsections (a) and (b) shall be referred to collectively as "adult products."
A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of products depicting, describing or relating to specified sexual activities or specified anatomical areas and still be categorized as adult bookstore, adult novelty store or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration of the specified products that are distinguished or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas.
3. "Adult cabaret" means a nightclub, restaurant, or similar business establishment that: (a) regularly features live performances that are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or (b) regularly features persons who appear in a state of nudity.
4. "Adult hotel/motel" means a hotel or motel or similar business establishment offering public accommodations for any form of consideration that, (a) provides patrons with closed-circuit television transmissions, films, computer generated images, motion pictures, video cassettes, slides, compact discs (CDs) or other photographic reproductions a substantial portion of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and (b) rents, leases, or lets any room for less than a six-hour period, or rents, leases, or lets any single room more than twice in a twenty-four hour period.
5. "Adult motion picture theater" means a building or portion thereof or area, open or enclosed, used for the presentation of motion pictures or other images in which a substantial portion of the total presentation time is devoted to the presentation of motion pictures distinguished or characterized by their emphasis on matters depicting, describing or relating to specified sexual activities, for observation by patrons or customers.
6. "Adult theater" means a theater, concert hall, auditorium or similar establishment that, for any form of consideration, regularly features live performances that are distinguished or characterized by an emphasis on the display of specified anatomical areas or specified sexual activities.
7. "Modeling studio" means a business that provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who display specified anatomical areas to be observed, drawn, sketched, photographed, painted, sculpted or otherwise depicted by persons paying such consideration. Modeling studio does not include schools maintained pursuant to standards set by the state Board of Education. Modeling studio further does not include a studio or similar facility owned, operated or maintained by an individual artist or group of artists, that does not provide, permit or make available specified sexual activities.
"Adult-entertainment business operator" (hereinafter "operator") means a person who supervises, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the activities at an adult-entertainment business.
"Adult performer" means a person who engages in or participates in any live performance displaying specified anatomical areas or depicting or involving specified sexual activities in an adult-entertainment business.
"Bar" means any commercial establishment licensed by the state Department of Alcoholic Beverage Control to serve any alcoholic beverages for consumption on the premises.
"Chief of police" means the chief of police of the city of American Canyon or authorized representative.
"City manager" means the city manager of the city of American Canyon or authorized representative.
"Couch dancing" or "straddle dancing" means an employee or independent contractor of the adult-oriented business intentionally touching any patron or coming within six feet of any patron while engaged in the display or exposure of any specified anatomical area, or while simulating any specified sexual activity.
"Distinguished or characterized by an emphasis upon" means and refers to the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films "that are distinguished or characterized by an emphasis upon" the depiction or description of specified sexual activities or specified anatomical areas, the films so described are those whose dominant or predominant character and theme are the depiction of the enumerated sexual activities or anatomical areas. See Pringle v. City of Covina. 115 Cal. App. 3. 151 (1981).
"Figure model" means any person who, for pecuniary compensation, consideration, hire or reward, displays specified anatomical areas in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted.
"Nudity" or "in a state of nudity" means the showing of the human male or female genitals, pubic area, anus or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering below a horizontal line across the top of the areola at the areola's highest point, or the showing of the covered male genitals in a discernible turgid state.
"Operate an adult-entertainment business" means the supervising, inspecting, directing, organizing, controlling or in any other way being responsible for or in charge of activities at an adult-entertainment business.
"Permittee" means the person to whom an adult-entertainment business permit is issued.
"Person" means any individual, partnership, firm, association, joint stock company, corporation, limited liability company or combination of individuals of whatever form or character.
"Regularly features" with respect to an adult theater or adult cabaret means a regular and substantial course of conduct. The fact that live performances that are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities occur on two or more occasions within a thirty-day period; three or more occasions within a sixty-day period; or four or more occasions within one hundred and eighty-day period, shall to the extent permitted by law be deemed to be a regular and substantial course of conduct.
"Specified anatomical areas" shall include:
(1) Less than completely and opaquely covered: (a) human genitals or pubic region, including anus; (b) buttocks; and (c) female breast below a point immediately above the top of the areola; and
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
"Specified sexual activities" shall include the following:
1. Actual or simulated 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 functions in the context of a sexual relationship, and any of the following depicted sexually oriented acts or conduct: analingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or
2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or
3. Use of human or animal masturbation, sodomy, oral copulation, coitus, ejaculation; or
4. Fondling or touching of nude human genitals, pubic region, buttocks, anus or female breasts; or
5. Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or
6. Erotic or lewd touching, fondling or other contact with an animal by a human being; or
7. Human excretion, urination, menstruation, vaginal or anal irrigation.
5.06.021 Couch dancing/straddle dancing and other sexual and related activities prohibited.
For purposes of this section, couch dancing or straddle dancing shall be defined as an employee or independent contractor of the adult-oriented business intentionally touching any patron or coming within six feet of any patron while engaged in the display or exposure of any specified anatomical area, or while simulating any specified sexual activity.
(A) No person shall operate or cause to be operated an adult-oriented business, regardless of whether or not a permit has been issued under this code, knowingly, or with reason to know, permitting, suffering or allowing any employee or independent contractor:
(1) To engage in a couch dance or straddle dance with a patron at the business;
(2) To contract or otherwise agree with a patron to engage in a couch dance or straddle dance with a person at the business;
(3) To intentionally touch any patron at an adult-oriented business while engaged in the display or exposure of any specified anatomical area or engaged in or simulating a specified sexual activity;
(4) To voluntarily be within six feet of any patron while engaged in the display or exposure of any specified anatomical area or engaged in or simulating a specified sexual activity.
(B) No employee or independent contractor of an adult-oriented business, regardless of whether or not a permit has been issued for said business under this chapter, shall:
(1) Engage in a couch dance or straddle dance with a patron at the business;
(2) Contract or otherwise agree to engage in a couch dance or straddle dance with a patron at the business;
(3) Engage in the display or exposure of any specified anatomical area or engage in or simulate a specified sexual activity while intentionally touching a patron at the adult-oriented business;
(4) Engage in the display or exposure of any specified anatomical area or engage in or simulate a specified sexual activity closer than six feet from any patron;
(5) Engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service between the hours of eleven p.m. and ten a.m.
(C) No person at any adult-oriented business, regardless of whether or not said business is permitted under this code, shall intentionally touch an employee or independent contractor who is displaying or exposing any specified anatomical area or engaging in or simulating a specified sexual activity at the adult-oriented business.
(D) No person at any adult-oriented business, regardless of whether or not said business is permitted under this code, shall engage in a couch dance or straddle dance with an employee or independent contractor at the business who is displaying or exposing any specified anatomical area or engaging in or simulating a specified sexual activity.
(E) No person at any adult-oriented business, regardless of whether or not a permit has been issued for said business under this chapter, shall violate any provision of this code.
(F) No waiter(s) or waitress(es) at an adult-oriented business, regardless of whether or not a permit has been issued for said business under this chapter, shall appear on the premises in the nude, seminude, or display or expose specified anatomical areas.
5.06.022 Establishment of an adult-oriented business.
The establishment of an adult-oriented business shall include any of the following:
(A) The opening or commencement of operation of any such business as a new business;
(B) The conversion of any existing business, (whether or not an adult-oriented business), to any adult-oriented business;
(C) The addition of any adult-oriented business to any existing adult-oriented businesses if the addition results in enlargement of the place of business. For the purposes of this paragraph, enlargement shall mean an increase in the size of the building within which the business is conducted by either construction or use of an adjacent building or any portion thereof, whether located on the same or an adjacent lot or parcel of land.
5.06.030 Permit required for operation of an adult-entertainment business providing live performances displaying specified anatomical areas or depicting or involving specified sexual activities.
It is unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises the operation of an adult-entertainment business that provides live performances displaying specified anatomical areas or depicting or involving specified sexual activities unless the person first obtains and continues to maintain in full force and effect a permit (hereinafter "adult-entertainment business permit") from the city of American Canyon as required herein.
5.06.040 Application for permit for an adult-entertainment business involving live performances.
(A) Any person desiring to obtain an adult-entertainment business permit to operate an adult-entertainment business for which a permit is required pursuant to Section 5.06.030 shall apply to the chief of police on a form provided by the police department. Before submitting the application a nonrefundable fee as established by resolution of the city council shall be paid to the department of finance to defray, in part, the cost of the investigation and report required by this chapter. The department of finance shall issue a receipt to the applicant showing that such permit application fee has been paid. The applicant shall provide the receipt or a copy thereof to the chief of police at the time of applying for a permit under this section.
(B) The application to the chief of police shall set forth the following information:
(1) The full and true name and any other names of each person with an ownership interest in the adult-entertainment business and of each person who will operate the adult-entertainment business;
(2) The present address and telephone number and driver's license number, if any, of the applicant and any operator;
(3) The two previous addresses immediately prior to the present address of the applicant and any operator;
(4) Written proof that the applicant and any operator is at least eighteen years of age;
(5) The height, weight, color of eyes and hair of the applicant and any operator;
(6) Five color portrait photographs at least two inches by two inches of the applicant and any operator;
(7) The business license or tax certificate history of the applicant and any operator, including whether the person while previously operating in this or another city, county or state under license, has had a license revoked or suspended, the reason(s) therefor, and the person's business activity or occupation subsequent to the suspension or revocation;
(8) All criminal convictions of any person with an ownership interest and any operator of offenses specified in Section 5.06.100 within five years of the date of application;
(9) The name and address of the lessor of the real property on which the business is to be conducted, and a copy of the lease agreement or other documentation to establish that the owner and/or landlord of the premises consents to the establishment of an adult-entertainment business on the premises;
(10) Detailed plans of the site and building as they will be operated; and
(11) Such other identification and information necessary to discover the truth of the matters specified in this section as required to be set forth in the application.
(C) If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown on its articles of incorporation, together with the names and residence addresses of each of the officers, directors and each stockholder holding more than ten percent of the stock of the corporation. If the applicant is a partnership, the application shall set forth the name and the residence address of each of the partners, including limited partners. If one or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant apply.
(D) The chief of police shall take fingerprints and additional photographs of the applicant and any operator, and shall confirm the height and weight of the applicant and any operator.
(E) The application for a permit does not authorize conducting an adult-entertainment business until a permit has been granted. The issuance of a business operations tax certificate pursuant to Chapter 3.08 of this code shall not authorize conducting an adult-entertainment business until the necessary adult-entertainment business permit required by Section 5.06.030 has been lawfully granted.
5.06.050 Corporate applicants—Exemption.
The provisions of Section 5.06.040(B)(4), (5) and (7) and (D) shall not apply to require any corporate applicant to provide such information as to the corporation; provided, however, that such information shall be provided for any operator.
5.06.060 Adult performer permits and figure model permits.
(A) No person shall engage in or participate in any live performance depicting or displaying specified anatomical areas or involving specified sexual activities in an adult-entertainment business unless the person first obtains and continues in full force and effect an adult-entertainment business performer permit (hereinafter "adult performer permit") and complies with all requirements of this chapter and other applicable laws.
(B) No person shall act as a figure model in a modeling studio unless the person first obtains and continues in full force and effect a figure model permit (hereinafter "figure model permit") and complies with all requirements of this chapter and other applicable laws.
(C) The issuance of a business operations tax certificate pursuant to Chapter 3.08 of this code shall not authorize any person to perform any act for which an adult performer permit or figure model permit is required until the necessary permit has been lawfully approved.
5.06.070 Application for adult performer permit or figure model permit.
(A) An application for an adult performer permit or figure model permit shall be made to the chief of police on a form provided by the city clerk. Prior to submitting an application a nonrefundable fee as established by resolution of the city council shall be paid to the department of finance to defray, in part, the cost of investigation and report required by this chapter. The department of finance shall issue a receipt to the applicant showing that a permit application fee has been paid. The applicant shall provide the receipt or a copy thereof to the chief of police at the time of applying for a permit under this section.
(B) The application to the chief of police shall set forth the following information:
(1) Name, residence address and telephone number of the applicant, and two previous addresses immediately prior to the present address;
(2) Driver's license number, if any, of the applicant;
(3) Applicant's height, weight, color of eyes and hair;
(4) Five color portrait photographs of the applicant at least two inches by two inches;
(5) Written evidence that the applicant is at least eighteen years of age;
(6) The name and address of the adult-entertainment business(es) where the applicant is to be employed or is to perform, if known, and the name of the owner(s) of the business(es);
(7) The names and address of any adult-entertainment businesses where the applicant previously engaged in or participated in live performances displaying specified anatomical areas or depicting or involving specified sexual activities or acted as a figure model;
(8) Whether the applicant has been convicted of any offense specified in Section 5.06.100 within five years of the date of application; and
(9) The adult performer or figure model permit or license history of the applicant; whether applicant has had a license revoked or suspended, the reason therefor and the applicant's business activity or occupation subsequent to the suspension or revocation.
(C) The chief of police shall take fingerprints and a photograph of the applicant and shall confirm the information submitted.
5.06.080 Verification of application.
Every application for a permit under this chapter shall be verified as provided in Section 128.7 of the California Code of Civil Procedure for the verification of pleadings.
5.06.090 Investigation and recommendations—Temporary permit.
(A) Upon receiving an application for an adult-entertainment business permit, the chief of police shall:
(1) Stamp the application as received on the date of receipt, and determine whether the application is complete. If the chief of police determines that the application is incomplete or has been completed improperly, the chief of police shall promptly notify the applicant of that fact and, on request of the applicant, grant the applicant an extension of time of ten days or less to complete the application properly. The time period for granting or denying a permit shall be stayed during the period in which the applicant is granted an extension of time;
(2) Within ten days of the date of filing of a complete application, refer the application to the building inspections division, the planning division and the fire department; and
(3) Within a reasonable period, not exceeding forty-five days after the filing of a complete application, investigate the application and recommend approval or denial to the city manager. A failure to make a recommendation within the specified time period shall not be considered a recommendation for approval or denial.
(B) Within ten days of the date of filing of a complete application, and if the chief of police determines that: (1) on the face of the application, there is no basis for denial of the permit under Section 5.06.100 due to prior criminal convictions, based solely upon the information provided by the applicant in the application; and (2) the location of the proposed adult-entertainment business conforms with all requirements of the Title 17, the city manager shall issue a temporary permit authorizing operation of the adult-entertainment business while the chief of police investigates the application and the city manager determines whether to issue or deny a regular permit.
(C) The building inspections division, the planning division and the fire department shall inspect the premises and make separate recommendations to the city manager, within thirty days after the filing of the completed application.
5.06.100 Issuance of permit for an adult-entertainment business.
(A) The city manager shall act on the application for an adult-entertainment business permit within sixty days after the date of filing of a completed application, and shall issue a regular permit if all requirements for an adult-entertainment business described in this chapter are met, unless the city manager finds:
(1) That the operation as proposed by the applicant, if permitted, will not comply with all applicable laws, including, but not limited to, the Title 17 of this code and the locational requirements set forth therein, and the building, health, housing and fire codes of the city of American Canyon;
(2) That the applicant or any operator has been convicted of any of the following offenses or convicted of an offense without the state of California that would have constituted any of the following offenses if committed within the state of California: Sections 243.4, 261, 266a, 266b, 266d, 266e, 266f, 266g, 266h, 266i, 266j, 267, 288, 314.1, 314.2, 315, 316, 318, 653.22 or subdivisions (a), (b) and (d) of Section 647 of the California Penal Code; any offense requiring registration under provisions of either Section 290 of the California Penal Code or Section 11590 of the California Health and Safety Code; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing, giving away, of a controlled substance specified in Section 11054, 11055, 11056, 11057 or 11058 of the California Health and Safety Code, or as those sections may thereafter be amended or renumbered; provided, however, that the city manager shall issue a permit to any person convicted of any of the crimes described above if: (a) the person is otherwise qualified for a permit; and (b) the longer of the following time periods has passed:
(i) Five years from date of the conviction, or
(ii) Five years from release from confinement, or
(iii) Five years from formal release from probation period, or
(iv) Five years from formal release from parole;
(3) That the applicant has knowingly made a material misrepresentation in the application;
(4) That the applicant or any operator has had a permit for an adult-entertainment business or adult-related establishment denied or revoked for cause by this city or any other city or county within the last five years;
(5) That the applicant or operator is not at least eighteen years of age;
(6) That the applicant has not paid the required fee to the department of finance.
(B) Notice of Decision. Not later than five days after the date of the decision of the city manager, notice of the decision shall be sent to the applicant postage prepaid at the address shown in the application and shall state whether the decision of the city manager was to grant or deny the permit.
(C) Upon issuance of a temporary permit or a regular permit, or if the city manager neither grants nor denies the regular permit within sixty days after the date a complete application is filed, the applicant may begin operating the adult-entertainment business for which the permit was sought, subject to strict compliance with the locational requirements of Chapter 5.06.255 of this code and the development and operational standards and requirements set forth in this chapter. Notwithstanding that applicant begins operating the adult-entertainment business under this section prior to the city manager's decision, the city manager may subsequently deny the application for a permit. In the event of a denial, the applicant shall cease operating the adult-entertainment business within ten days unless the applicant timely appeals the decision denying the permit pursuant to Section 5.06.120. If a timely notice of appeal is filed, the applicant may continue operating the adult-entertainment business while the appeal is pending.
5.06.110 Issuance of adult performer permit or figure model permit.
(A) The chief of police shall act on the adult performer permit or figure model application within sixty days after the filing of a complete application. Pending the decision on the application, the applicant who has filed a complete application shall be entitled to perform as an adult performer or figure model, and the chief of police shall issue a temporary permit for this purpose; provided that no temporary permit shall be issued to a person who has applied for, and had denied within the past one year, an adult performer permit or figure model permit.
(B) The chief of police shall issue the permit if all requirements for the permit are met, unless the chief of police finds:
(1) That the applicant has been convicted of any of the following offenses or convicted of an offense without the state of California that would have constituted any of the following offenses if committed within the state of California: Sections 243.4, 261, 266a, 266b, 266d, 266e, 266f, 266g, 266h, 266i, 266j, 267, 288, 314.1, 314.2, 315, 316, 318, 653.22 or subdivisions (a), (b) or (d) of Section 647 of the California Penal Code; any offense requiring registration under provisions of either Section 290 of the California Penal Code or Section 11590 of the California Health and Safety Code; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing, giving away, of a controlled substance specified in Section 11054, 11055, 11056, 11057 or 11058 of the California Health and Safety Code, or as those sections may hereafter be amended or renumbered; provided, however, that the chief of police shall issue a permit to any person convicted of any of the crimes described above if: (a) the person is otherwise qualified for a permit; and (b) the longer of the following time periods has passed:
(i) Five years from date of the conviction, or
(ii) Five years from release from confinement, or
(iii) Five years from formal release from probation period, or
(iv) Five years from formal release from parole;
(2) That the applicant has knowingly made a material misrepresentation in the application;
(3) That the applicant has had an adult performer permit or figure model permit denied or revoked for cause by this city or any other city or county within the last five years;
(4) That the applicant is not at least eighteen years of age;
(5) That the applicant has not paid the required fee to the department of finance.
(B) Notice of Decision. The decision shall be in writing and mailed to the applicant postage prepaid, within five days after the chief of police's decision. If the permit is denied, the applicant shall cease activities as an adult performer or figure model within ten days unless the applicant timely appeals the decision denying the permit pursuant to Section 5.06.120. If a timely notice of appeal is filed, the applicant may continue acting as an adult performer or figure model while the appeal is pending.
5.06.120 Administrative appeals—Issuance or denial of permit.
(A) Adult-entertainment Business Permits. Any applicant aggrieved by the decision of the city manager relating to the issuance or denial of a permit for an adult-entertainment business may, within ten days after the date of mailing of the decision to the applicant, appeal the decision to the city council by filing a written notice of appeal with the city clerk. Pending a decision on the appeal, and if a temporary permit has been issued, the appellant may continue to operate the adult-entertainment business. If an appeal is not filed within ten days, the decision of the city manager shall be final.
(B) Adult Performer Permits or Figure Model Permits. Any applicant aggrieved by the decision of the chief of police relating to the issuance or denial of any adult performer permit or figure model permit may, within ten days after the date of mailing of the decision to the applicant, appeal the decision to the city council by filing a written notice of appeal with the city clerk. Pending a decision on the appeal, the appellant may continue to perform as an adult performer or figure model pursuant to the temporary permit. If an appeal is not filed within ten days, the decision of the chief of police shall be final.
(C) Hearing on Appeal. An appeal pursuant to subsection (A) or (B) shall be set for hearing by the council at a date not later than thirty days after the filing of the notice of appeal. The notice of hearing shall be mailed to the applicant at least ten days prior to the date set for the hearing. The council may continue its hearing on the appeal from time to time; provided, however, that the decision on the appeal shall issue no later than thirty days after the original date set for hearing. The council shall hear all relevant evidence from competent persons relating to the granting or denial of the permit. It may return the matter to the city manager or chief of police for further information or further investigation. The council may affirm, reject or modify the decision of the city manager or chief of police.
(D) Appointment of Hearing Examiner. The city council may employ the procedure specified in this code for the appointment of a hearing officer to hear and decide the appeal.
5.06.130 Term and renewal of adult-entertainment business permits.
(A) An adult-entertainment business permit shall expire one year from the date of issuance of the permit, unless sooner suspended or revoked.
(B) A permit that has not been suspended or revoked may be renewed for the period specified in subsection (A) of this section on written application to the chief of police. Applications for renewal shall be acted on as provided in this chapter for permit applications. Before submitting the renewal application a nonrefundable renewal fee as established by resolution of the city council shall be paid to the department of finance to defray, in part, the cost of reviewing the renewal application. The application shall be filed at least thirty days but not more than sixty days prior to the expiration date of the current valid permit. When a timely and complete application for renewal is filed, the expiration of the permit shall be stayed until a decision on the renewal application is issued. When the application for renewal is filed less than thirty days before the expiration date, the expiration of the permit shall not be stayed.
(C) An adult-entertainment business lawfully operating as a conforming use pursuant to an adult-entertainment business permit is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the adult-entertainment business permit, of a use or a zone not consistent with the locational requirements set forth in Chapter 5.06.255 of this code, and a renewal application shall not be denied on that ground.
5.06.140 Term and renewal of adult performer permits and figure model permits.
(A) An adult performer permit or figure model permit shall expire one year from the date of issuance of the permit, unless sooner suspended or revoked.
(B) A permit that has not been suspended or revoked may be renewed for the period specified in subsection (A) of this section on written application to the chief of police. Applications for renewal shall be acted on as provided in this chapter for permit applications. Before submitting the renewal application a nonrefundable renewal fee as established by resolution of the city council shall be paid to the department of finance to defray, in part, the cost of reviewing the renewal application. The application shall be filed at least ten days but not more than sixty days prior to the expiration date of the current valid permit. When a timely and complete application for renewal is filed, the expiration of the permit shall be stayed until a decision on the renewal application is issued. When the application for renewal is filed less than ten days before the expiration date, the expiration of the permit shall not be stayed.
5.06.150 Name and place of business—Change of location.
No person granted a permit for an adult-entertainment business shall operate the adult-entertainment business under any name or at any location not specified in the permit.
5.06.160 Suspension or revocation of adult-entertainment business permits, adult performer permits, and figure model permits.
(A) An adult-entertainment business permit may be suspended or revoked by the city manager in accordance with the procedures and standards of this section. An adult performer permit or figure model permit may be suspended or revoked by the chief of police in accordance with the procedures and standards of this section.
(B) The city manager or chief of police shall hold a hearing prior to the suspension or revocation of a permit. On determining that grounds for permit suspension or revocation exist, the city manager or chief of police shall furnish written notice of the proposed suspension or revocation to the permittee. The notice shall set forth the time and place of a public hearing to be held prior to the suspension or revocation, the ground or grounds upon which the proposed suspension or revocation is based, the pertinent code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the permittee, or shall be delivered to the permittee personally, at least ten days prior to the hearing.
(C) Adult-Entertainment Business Permit. An adult-entertainment business permit required pursuant to Section 5.06.030 may be suspended or revoked or be subjected to other appropriate disciplinary action, if any of the following causes arises from the acts or omissions of the permittee, or an operator of the adult-entertainment business:
(1) The building, structure, equipment or location used by the adult-entertainment business fails to comply with all applicable building, fire, electrical, plumbing, health and zoning requirements of the city of American Canyon all applicable state and federal requirements of a similar nature that are customarily enforced by the city, and all provisions of these regulations and this code relating to adult-entertainment businesses, including the adult-entertainment business development and operational standards;
(2) The permittee has knowingly made any false, misleading or fraudulent statement of material facts in the application for a permit, or in any report or record required to be filed with the city;
(3) The permittee or operator of an adult-entertainment business has knowingly allowed or permitted, or has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the adult-entertainment business:
(a) Any act of unlawful sexual intercourse, sodomy, oral copulation or masturbation,
(b) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation or masturbation occur,
(c) Any conduct constituting a criminal offense that 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 Sections 315, 316 or 318, or subdivision (b) of Section 647 of the California Penal Code,
(e) Any act constituting a violation of provisions in the California Penal Code relating to obscene matter or distribution of harmful matter to minors, including but not limited to Sections 311 through 313.4;
(4) Failure to abide by any disciplinary action previously imposed;
(5) Failure to comply with any of the requirements for operation of adult-entertainment businesses set forth in this chapter.
(D) Adult Performer and Figure Model Permits. The chief of police may suspend or revoke an adult performer permit or figure model permit for conviction of any of the crimes specified in Section 5.06.110 or for engaging in one of the activities described in Section 5.06.160(C)(3) while on the premises of an adult-entertainment business.
(E) After holding the hearing in accordance with the provisions of this section, if the city manager or chief of police finds and determines that there are grounds for disciplinary action, based upon the severity of the violation, the city manager or chief of police shall impose one of the following:
(1) A warning;
(2) Conditions upon the permit;
(3) Suspension of the permit for a specified period not to exceed six months;
(4) Revocation of the permit.
5.06.170 Administrative appeals—Suspension or revocation of permit.
(A) Adult-Entertainment Business Permits. Any permittee aggrieved by the decision of the city manager relating to the suspension or revocation of an adult-entertainment business permit, or other discipline imposed, may within ten days after the date of mailing of the decision to the permittee, appeal to the city council by filing a written notice of appeal with the city clerk. If an appeal is not filed within ten days, the decision of the city manager shall be final. If a timely notice of appeal is filed, the decision of the city manager shall be stayed until the decision on appeal is issued. No fee shall be charged for an appeal.
(B) Adult Performer or Figure Model Permits. Any permittee aggrieved by the decision of the chief of police relating to the suspension or revocation of, or the imposition of a condition or restriction upon, any adult performer or figure model permit may, within ten days after the date of mailing of the decision to the permittee, appeal the decision to the city council by filing a written notice of appeal with the city clerk. If an appeal is not filed within ten days, the decision of the chief of police shall be final. If a timely notice of appeal is filed, the decision of the chief of police shall be stayed until the decision on appeal is issued. No fee shall be charged for an appeal.
(C) Hearing on Appeal. An appeal pursuant to subsection (A) or (B) shall be set for hearing by the council at a date not later than thirty days after the filing of the notice of appeal. The notice of hearing shall be mailed to the applicant at least ten days prior to the date set for the hearing: The council may continue its hearing on such appeal from time to time provided, however, that the decision on the appeal shall issue no later than thirty days after the original date set for hearing. The council shall hear all relevant evidence from competent persons relating to suspension or revocation of, or other discipline imposed upon, the permit. It may return the matter to the city manager or chief of police for further information or further investigation. The council may affirm, reject or modify the decision of the city manager or chief of police.
(D) Appointment of Hearing Examiner. The city council may employ the procedure specified in this code for the appointment of a hearing officer to hear and decide the appeal.
5.06.180 Judicial review—Stay pending trial court decision.
(A) General. Judicial review of any final administrative decision after appeal under this chapter issuing, denying, suspending or revoking, or imposing other discipline upon, an adult-entertainment business permit, adult performer permit or figure model permit may be had pursuant to Code of Civil Procedure Section 1094.8. The city clerk shall provide written notice of the time limits referenced in Code of Civil Procedure Section 1094.8 to the appellant when transmitting the decision.
(B) Stay Pending Expiration of Period for Filing a Judicial Challenge. A final administrative decision issuing, denying, suspending or revoking, or imposing other discipline upon, an adult-entertainment business permit, adult performer permit or figure model permit, whether temporary or regular, shall be stayed for a period of twenty-one days after the decision becomes final, and the adult-entertainment business, adult performer or figure model shall be entitled to operate pursuant to the permit during the twenty-one day time period.
(C) Stay Pending Court Decision on Judicial Challenge. Upon the timely filing of a request for judicial review pursuant to Code of Civil Procedure Sec. 1094.6 or 1094.8, the administrative decision issuing, denying, suspending or revoking, or imposing other discipline upon an adult-entertainment business permit, adult performer permit or figure model permit, whether temporary or regular, shall be stayed until the request for judicial review is dismissed or until a decision on the merits is issued by the trial court. The adult-entertainment business, adult performer or figure model shall be entitled to operate during the stay.
5.06.190 Register of adult performers and figure models.
(A) The operator of a modeling studio shall maintain on the premises a register of all persons employed as or acting as figure models and their permit numbers.
(B) The operator of an adult-entertainment business that provides live entertainment depicting or displaying specified anatomical areas or involving specified sexual activities shall maintain a register on the premises of all persons performing on the premises and their permit numbers.
(C) The register required by subsections (A) and (B) shall include models and performers then modeling or performing on the premises as well as all models and performers who have modeled or performed on the premises during the previous six months. The register shall remain confidential, except that it shall be available for inspection by law enforcement personnel or the county health officer immediately upon demand at all times during regular business hours.
5.06.200 Adult performer and figure model identification card.
The chief of police shall provide to each adult performer and figure model granted a temporary or regular permit an identification card containing the name, photograph and permit number of the adult performer or figure model. The identification card shall remain confidential, except that an adult performer or figure model shall deposit his or her identification card with the on-site manager of an adult-entertainment business while the adult performer or figure model is working on the premises. The on-site manager shall make the identification cards available for inspection by law enforcement personnel or the county health officer at all times while the adult-entertainment business is open for business.
5.06.210 Employment of persons under the age of eighteen years prohibited.
It is unlawful for the permittee or operator of an adult-entertainment business to employ, or permit to perform services or entertainment on the premises, any person who is under the age of eighteen years.
5.06.220 Display of permit.
Every adult-entertainment business granted a permit shall display the permit in a conspicuous place within the adult-entertainment business at all times during business hours.
5.06.230 Business operations tax.
Nothing in this title shall relieve the owner of any adult-entertainment business, or any adult performer or any figure model, from paying the applicable business operations tax pursuant to Chapter 5.04 of this code. The issuance of a business operations tax certificate shall not authorize conducting an adult-entertainment business, or performing as an adult performer in an adult-entertainment business, or acting as a figure model in a modeling studio, until the necessary temporary or regular permit required by Section 5.06.030 or 5.06.060 has been lawfully granted.
5.06.240 Transfer of adult-entertainment business permit.
(A) Upon sale, transfer or relocation of an adult-entertainment business, the permit therefor shall be void unless permission to transfer is first obtained pursuant to this section; provided, however, that upon the death or incapacity of the permittee, the establishment may continue in business for a reasonable period of time to allow for an orderly transfer of the permit pursuant to this section. Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void, and upon such attempt the permit shall be deemed revoked.
(B) No adult-entertainment business permit shall be transferable as to location or person, except with the written consent of the city manager. An application for transfer shall be in writing and contain the same information required for an initial permit application. Prior to submitting the application to the chief of police, the applicant shall pay a nonrefundable fee, established by resolution of the city council, to the department of finance. The department of finance shall issue a receipt to the applicant showing that the permit transfer application fee has been paid. The applicant shall provide the receipt or a copy thereof to the chief of police with the permit transfer application.
(C) No adult-entertainment business permit may be transferred after the city manager has notified the permittee that the permit has been or may be suspended or revoked.
(D) An application to transfer shall be approved if the city manager determines that the transferee would be entitled to the issuance of an adult-entertainment business permit under this chapter; provided, however, that an application for transfer at the same location shall not be denied if the only ground for denial is that the location of the business no longer meets the locational criteria set forth in the Chapter 5.06.255.
5.06.250 Employment of adult performer and figure models.
(A) No permittee or operator of a modeling studio shall allow or permit a person to act as a figure model for the studio unless the person possesses a valid figure model permit under the provisions of this chapter. It shall be the responsibility of the permittee and the operator to ensure that each person employed or acting as a figure model shall have first obtained a valid permit pursuant to this chapter.
(B) No permittee or operator of an adult-entertainment business shall employ and/or allow any person to engage in or participate in any live performance displaying or depicting specified anatomical areas or involving specified sexual activities unless that person possesses a valid adult performer permit under the provisions of this chapter. It shall be the responsibility of the permittee and the operator to ensure that each person acting as an adult performer shall have first obtained a valid permit pursuant to this chapter and shall comply with all other requirements of this chapter.
(C) No permittee or operator of an adult-entertainment business shall employ at an adult-entertainment business, or permit to provide services or entertainment at an adult-entertainment business, any person who has been convicted of an offense specified in Section 5.06.110(B), where the offense occurred at any adult-related establishment.
5.06.255 Locational standards.
(A) No adult business shall be established or located in any area in the city other than the following zoning districts:
(1) CC—Community Commercial District;
(2) GI—General Industrial District.
(B) An adult business shall not be established or located within:
(1) Five hundred feet from any residence or residential zone, or religious institution (as defined in Section 9.08.010(E).
(2) One thousand feet of any school, nursery, day care center, or public or private park.
(C) Distance Between Adult Businesses. An adult business shall not be established or located within one thousand feet of an existing adult business. If two or more existing adult businesses are located in closer proximity to each other than one thousand feet, then in determining which of the businesses is or are nonconforming, preference shall be given in the order of the respective lengths of continuous lawful uninterrupted operation of the businesses.
(D) Measurement of Distance. For the purpose of measuring the distance requirements set forth in subsections (B) and (D) of this section, all distances shall be measured, without regard to intervening structures, from the nearest property line of the property on which the adult business is or will be located to the nearest property line of any residentially zoned property, school, nursery, day care center, religious institution or public or private park as described in subsection (B) of this section, or between the nearest property lines of the properties occupied by or proposed to be occupied by adult businesses as described in subsection (D) of this section, along a straight line extended between the two points.
(E) All adult businesses are required to procure and maintain an adult business license as mandated by Chapter 5.10 et seq., of the city's Municipal Code.
(F) No building permit or zoning clearance, business tax receipt, adult business license, or other permit or entitlement for use shall be legally valid if issued to any adult business proposed to operate or to be established in the city except if the zoning and locational requirements set forth in this section are satisfied.
(G) An adult business or establishment operating as a legal conforming use with an approved adult business license from the city shall not be rendered a nonconforming use by the subsequent location of residential zones, schools, nurseries, day care centers, religious institutions or public or private parks within the locational limitations set forth in this section. For purposes of this section, a use shall be deemed to be subsequently located if it commences following the date an application for an adult business license is filed pursuant to Section 5.10.014 of the Municipal Code.
(H) Zone D of the Napa County Airport Land Use Environs Plan (AELUP) limits occupancy to one hundred persons per structure and one hundred fifty persons per net acre (both within a structure and outdoors on the site). All adult businesses within Zone D of the Napa County AELUP are required to comply with the applicable AELUP occupancy standards.
5.06.260 Development standards.
(A) Design Standards.
(1) All building openings, entries and windows shall be located, covered or screened to prevent viewing the interior from any exterior area.
(2) No partitions between subdivisions of a room, portion, or part of a building, structure or premises, including restrooms, may have an aperture, hole, slit, or other opening or gap which is designed or otherwise constructed to encourage, permit, or allow sexual activity between persons on either side of the partition.
(3) Each adult-oriented business shall have a business entrance separate from any other nonadult business located in the same building.
(4) The maximum occupancy load, fire exits, fire lanes, and fire suppression equipment shall be regulated, designed and provided in accordance with the regulations and standards of the American Canyon fire division and the city's building division.
(5) Any adult-oriented business in which live entertainment is performed, whether or not such performers are appropriately licensed as required by this code, shall have such performances only conducted on a stage or on a platform that is raised eighteen inches and which has a rail which does not allow patrons to be any closer to the performers than six feet. Said rail shall be at least forty-two inches in height and shall be installed around the perimeter of the stage or platform.
(6) Any adult-oriented business shall be designed such that a manager's station is provided for the purpose of supervising activities within the business and such that a manager in the manager's station can view the entire interior of the business to which the public is allowed access, excepting restrooms.
(7) Any viewing room or area shall be visible from the manager's station and such view shall not be obscured or obstructed by any wall, curtain, door, any other structure, or by any display of merchandise.
(8) No private viewing areas as defined herein shall be permitted or shown on any design for an adult-oriented business.
(9) An adult business proposed in Zone D of the Napa County Airport Land Use Environs Plan (AELUP) shall demonstrate that the occupancy of the proposed business shall not exceed the AELUP occupancy standards of one hundred persons per structure and one hundred fifty persons per net acre (both within a structure and outdoors on the site).
(B) Performance Standards. The establishment of an adult-oriented business shall comply with the applicable site development standards—including parking—of the zone, district, or area in which the adult-oriented business is located, the building code, fire code, and the health and safety code of the city. An adult-oriented business shall comply with the applicable city permit and inspection procedures. In addition, adult-oriented businesses shall comply with the following performance standards:
(1) At all times, the maintenance and operation of an adult-oriented business shall be in accordance with the design standards set forth in subsection (A) of this section.
(2) The building entrance to the adult-oriented business shall be clearly and legibly posted with a notice indicating that minors are precluded from entering the premises.
(3) A manager shall be on duty on the premises during all times that the adult-oriented business is open to the public.
(4) Any viewing room shall be visible from the manager's station of the adult-oriented business, and visibility of the entire viewing room from the manager's station shall be neither obscured nor obstructed by any curtain, door, wall, or other structure.
(5) All exterior areas of adult-oriented businesses, including buildings, landscaping, and parking areas, shall be maintained in a clean and orderly manner free of trash, weeds and debris.
(6) No special events, promotions, concerts, or similar activities which are likely to increase the parking demand at the location of the adult-oriented business shall occur unless the permit-holder has obtained a special events permit from the city as would be required by all other types of businesses within the city.
(7) No adult-oriented business, excepting an adult motel, shall operate between the hours of eleven p.m. and ten a.m. No owner, operator, manager, employee, or independent contractor of an adult-oriented business, except an adult motel, regardless of whether or not a permit has been issued for said business under the provisions of this code, shall allow such business to remain open for business, or no owner, operator, manager or employee of an adult-oriented business shall permit any employee or independent contractor to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service between the hours of eleven p.m. and ten a.m.
(8) Off-street parking shall be provided for the adult-oriented business on-site and as specified for the zone, district or area in which the business is located in accordance with the parking provisions of this code and as follows:
(a) Adult Theater, Adult Cabaret, Adult Motion Theater, or Adult Arcade. One parking space shall be provided for every two seats in a viewing room, or one parking space shall be provided for every two occupants per the allowable occupant load as established by the chief building official and/or the fire marshal, which ever standard is greater. In addition, one parking space shall be provided for each employee or independent contractor on the maximum shift.
(9) Any person who operates or causes to be operated an adult-oriented business, other than an adult motel and regardless of whether or not an adult-oriented business license has been issued to said business under this code, which exhibits on the premises in a viewing room or viewing area of less than one hundred fifty square feet of floor space, a film, video cassette, or other video reproduction depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
(a) Upon application for an adult-oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations, the location of all overhead lighting fixtures, and designating any portion of the premises in which patrons shall not be permitted. A manager's station(s) shall not exceed thirty-two square feet of floor area.
(b) No alteration in the configuration or location of a manager's station shall be made without the prior written approval of the director of community development.
(c) It is the duty of the permit holder to ensure that at least one employee is on duty and situated at each manager's station at all times that any patron is present inside the premises.
(d) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms shall not contain video reproduction equipment. If the premises has two or more manager's stations designed, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection shall be by direct line of sight from the manager's station.
(e) It shall be the duty of the permit holder and any employees or independent contractors present on the premises to insure that the view area specified in subsection (B)(9)(d) of this section remains unobstructed by any doors, walls, merchandise, display racks, or other materials at all times and to insure that no patron is permitted access to any area of the premises which has been designed as an area in which patrons shall not be permitted in the application filed pursuant to this chapter.
(10) An on-site security program shall be prepared and implemented including the following items:
(a) All off-street parking areas and building entries serving the adult-oriented business shall be illuminated during all hours of operation with a lighting system designed to provide an average maintained horizontal illumination of one foot candle of light on the parking surface and/or walkway. This required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the adult-oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and theft. The lighting shall be shown on the required site or plot plan. The required lighting shall remain on for at least thirty minutes after the closing time of the adult-oriented business to promote safety for employees thereof.
(b) All off-street parking areas shall have a security system provided that visually records and retains activities in the parking lot for at least a forty-eight hour period for the purposes of promoting safety and identifying violators.
(c) All interior portions of the adult-oriented business, except those areas devoted to mini-motion or motion pictures, shall be illuminated during all hours of operation with a lighting system designed to provide a minimum maintained horizontal illumination of not less than two foot candles of light.
(d) For adult-oriented businesses which exceed an occupant load of one hundred twenty-five persons, the provision of on-site security personnel shall be required during all business hours pursuant to a plan to be reviewed and approved for adequacy by the designated head of the law enforcement entity providing law enforcement services to the city. Security personnel shall be licensed in accordance with the California Business and Professions Code, to the satisfaction of the designated head of the entity providing law enforcement services to the city.
(11) Adult Motion Picture Theater/Adult Arcade.
(a) A manager's station shall be located near the main entrance and the station shall be provided with an unobstructed view of all motion picture or arcade viewing areas.
(b) No adult motion picture theater or adult arcade shall be maintained or operated unless the complete interior of the adult motion picture theater or adult arcade is visible upon entrance to such premises. No partially or fully enclosed booths or partially or fully concealed booths shall be maintained.
(c) Maximum Number of Devices. No person shall operate an adult motion picture theater or adult arcade in which the number of image producing devices exceeds the maximum occupancy load permitted in any room or partitioned portion of a room in which an image producing device is located.
(12) Adult Hotel/Motel.
(a) Evidence that a sleeping room in a hotel, motel, or a similar commercial establishment has been rented or subrented and vacated two or more times in a period of time that is less than ten hours within a twenty-four hour period on a recurring basis creates a rebuttable presumption that the establishment is an adult hotel/motel as that term is defined in this title.
(b) A person is in violation of the provisions of this title if such person rents or subrents a sleeping room at a location without an adult-oriented business license and an adult use planning permit to a person or persons and within ten hours thereafter rents or subrents the same room to an other person(s), or subrents the same room to the prior renter.
(13) No advertising sign or structure, advertisement, display, or other promotional material depicting specified anatomical areas or specified sexual activities or displaying instruments, devices or paraphernalia designed for use in connection with specific sexual activities, shall be shown or exhibited so as to be visible from any exterior area.
(14) No loudspeaker or sound equipment audible to persons in any public exterior area shall be used in connection with an adult-oriented business, and the business shall be so conducted that sounds associated with the business are not emitted into any public exterior area.
5.06.270 Adult-entertainment businesses providing live entertainment.
The following additional requirements shall pertain to adult-entertainment businesses providing live entertainment depicting or displaying or involving specified anatomical areas or involving specified sexual activities:
(A) The adult-entertainment business shall provide separate dressing room facilities for adult performers that are exclusively dedicated to the adult performers' use, and to which no patron shall be admitted.
(B) The adult-entertainment business shall provide an entrance/exit for adult performers that are separate from the entrance/exit used by patrons.
(C) No adult performer, either before, during or after performances, shall fondle or caress any patron and no patron shall fondle or caress any adult performer either before, during or after performances by the adult performer. This subsection shall only apply to physical contact on the premises of the adult-entertainment business.
5.06.280 Management and security requirements.
(A) There shall be present on the premises of an adult-entertainment business at all times while the business is open a manager who shall be in charge of all of the activities on the premises and who shall be responsible to ensure compliance with all requirements set forth in this chapter.
(B) An adult-entertainment business shall employ security guards in order to maintain the public peace and safety, based upon the following standards:
(1) An adult-entertainment business featuring live entertainment shall provide at least one security guard at all times while the business is open. If the number of persons on the premises exceeds fifty persons, an additional security guard shall be on duty.
(2) Security guard(s) shall be charged with preventing violations of law and enforcing patrons' compliance with the requirements of this chapter. Security guards shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of state law. No security guard required pursuant to this subsection shall act as a manager, door person, ticket seller, ticket taker, admittance person or perform any duties other than surveillance of the premises, the adult performers, and the patrons to prevent violations of law and enforce compliance with the requirements of this chapter while acting as a security guard. Security guards shall report any violation of law immediately to the responsible manager on the premises at the time the violation or threatened violation occurs, and shall prepare a written report outlining the violation or threatened violation observed. Copies of all written reports required by this section shall be maintained on the premises along with the register of adult performers required by Section 5.06.190, and shall be available for inspection by law enforcement personnel at all times during regular business hours.
5.06.290 Persons under the age of eighteen years prohibited on premises of adult-entertainment business.
It is unlawful for the permittee or operator of an adult-entertainment business to permit to enter, or remain within, the adult-entertainment business, any person who is under the age of eighteen years.
5.06.300 Violations.
(A) In order to operate an adult business in American Canyon, the business must obtain an adult business license as provided for in Chapter 5.22 et seq.
(B) Any owner, operator, manager, employee or independent contractor of an adult business violating or permitting, counseling or assisting the violation of any of these provisions regulating adult businesses shall be subject to any and all civil remedies, including license revocation. All remedies provided in this chapter shall be cumulative and not exclusive. Any violation of these provisions shall constitute a separate violation for each and every day during which such violation is committed or continued.
(C) In addition to the remedies set forth in subsection (B) of this section, any adult business that is operating in violation of these provisions regulating adult businesses is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation.
(D) The restrictions imposed pursuant to this section do not constitute a criminal offense. Notwithstanding any other provision of the American Canyon Municipal Code, the city does not impose a criminal penalty for violations of the provisions of the ordinance codified in this chapter related to sexual conduct or activities.
5.06.310 Regulations nonexclusive.
The provisions of this chapter regulating adult businesses are not intended to be exclusive, and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the city council of the city of American Canyon.
5.06.320 Applicability to existing adult-entertainment businesses, adult performers and figure models.
(A) General. The provisions of this chapter shall apply to all adult-entertainment businesses, and all owners or operators thereof, and all adult performers and figure models, whether such business or activity was in operation before or after the effective date of this chapter; provided, however, that all such businesses, and all owners or operators thereof, and persons shall have one hundred eighty days from the effective date of this chapter to comply with the provisions of this chapter and adult performers and figure models shall have sixty days from the effective date of this chapter to comply with provisions of this chapter. Any person who has filed a timely application for a permit within said time limit shall not be subject to the provisions of this chapter relating to possession or display of a permit until a permit is issued or denied.
Exception. Temporary exemption from permit requirements for lawfully existing adult-entertainment businesses with adult-related establishment permit: The owner(s) and operator(s) of lawfully existing adult-entertainment businesses providing live entertainment depicting or displaying specified anatomical areas or involving specified sexual activities that were lawfully established on the effective date of this chapter shall not be required to obtain an adult-entertainment business permit pursuant to Section 5.06.030 of this chapter within one hundred eighty days, if the owner(s) and operator(s) have an adult-related establishment permit for the facility pursuant to Chapter 5.04 as it existed prior to the effective date of this chapter; and provided further that the owner(s) and operator(s) shall obtain a permit pursuant to this chapter prior to the date on which the adult-related establishment permit expires or would have expired.
(B) Variance from Separate Entrance/Exit Requirements. The chief of police may authorize a variance from the separate entrance/exit requirements of Section 5.06.270(B) for an adult-entertainment business lawfully existing on the effective date of this chapter if the chief finds that the alternative method of separation and/or entrance and exit provides adequate safety for adult performers entering or exiting the premises. The chief of police shall make a decision on the variance within thirty days after the owner or operator of the business submits a written request for variance describing in detail the variance requested.
(C) Failure to Obtain Permits—Violation of Chapter. Failure to apply for and obtain a permit within the time period specified in subsection (A) and thereafter continuing to operate an adult-entertainment business for which a permit is required pursuant to Section 5.06.030 without a permit shall constitute a violation of this chapter.
5.06.330 Severability.
If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this chapter or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, that decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The city council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.
In particular, the city council hereby declares that it would have adopted the development and operational provisions of this chapter, even in the absence of the permit issuance provisions of this chapter. Further, the city council hereby declares that it would have adopted the permit issuance provisions relating to adult performers even in the absence of the permit issuance provisions for adult-entertainment businesses. In the event a court of competent jurisdiction renders a decision invalidating any permit issuance provisions contained herein, any adult-entertainment business that operates in the city shall be deemed to be operating under a de facto permit subject to all requirements of this chapter that have not been invalidated.
Chapter 5.10 COMMERCIAL CANNABIS LICENSE
5.10.010 Purpose and intent.
It is the purpose and intent of this chapter to implement the provisions of the Medicinal and Adult Use Cannabis Regulation and Safety Act ("MAUCRSA") to accommodate the needs of medically-ill persons in need of and provide access to cannabis for medicinal purposes as recommended by their health care provider(s), and to provide access to adult-use cannabis for persons over the age of twenty-one as authorized by the Control, Tax and Regulate the Adult Use of Marijuana Act ("AUMA" or "Proposition 64" passed by California voters in 2016), while imposing sensible regulations on the use of land to protect the city 's residents, neighborhoods, and businesses from disproportionately negative impacts. As such, it is the purpose and intent of this chapter to regulate the cultivation, processing, manufacturing testing, sale, delivery, distribution and transportation of cannabis and cannabis products in a responsible manner to protect the health, safety, and welfare of the residents of the city of American Canyon and to enforce rules and regulations consistent with state law. It is the further purpose of intent of this chapter to require all commercial cannabis operators to obtain and renew annually a permit to operate within the city of American Canyon. Nothing in this chapter is intended to authorize the possession, use, or provision of cannabis for purposes that violate state or federal law. The provisions of this chapter are in addition to any other permits, licenses and approvals which may be required to conduct business in the city, and are in addition to any permits, licenses and approval required under state, city, or other law.
5.10.020 Legal authority.
Pursuant to Sections 5 and 7 of Article XI of the California Constitution, the provisions of the Medicinal and Adult Use Cannabis Regulation and Safety Act (hereinafter "MAUCRSA"), any subsequent state legislation and/or regulations regarding same, the city of American Canyon is authorized to adopt ordinances that establish standards, requirements and regulations for the licensing and permitting of commercial cannabis activity. Any standards, requirements, and regulations regarding health and safety, security, and worker protections established by the state of California, or any of its departments or divisions, shall be the minimum standards applicable in the city of American Canyon to all commercial cannabis activity.
5.10.030 Cannabis cultivation and commercial cannabis activities prohibited unless specifically authorized by this chapter.
Except as specifically authorized in this chapter, the commercial cultivation, manufacture, processing, storing, laboratory testing, labeling, sale, delivery, distribution or transportation (other than as provided under Business and Professions Code Section 26090(e)), of cannabis or cannabis product is expressly prohibited in the city of American Canyon.
5.10.040 Compliance with state and local laws.
It is the responsibility of the owners and operators of the commercial cannabis business to ensure that it always operates in a manner compliant with all applicable state and local laws, and any regulations promulgated thereunder. Nothing in this chapter shall be construed as authorizing any actions that violate federal, state law or local law with respect to the operation of a commercial cannabis business. It shall be the responsibility of the owners and the operators of the commercial cannabis business to ensure that the commercial cannabis business is, at all times, operating in a manner compliant with all applicable federal, state and local laws, including the Medicinal and Adult Use Cannabis Regulation and Safety Act ("MAUCRSA"), and any subsequently enacted state law or regulatory, licensing, or certification requirements, and any specific, additional operating procedures or requirements which may be imposed as conditions of approval of the commercial cannabis business permit. Nothing in this chapter shall be construed as authorizing any actions that violate federal or state law regarding the operation of a commercial cannabis business.
5.10.050 Definitions.
When used in this chapter, the following words shall have the meanings ascribed to them as set forth herein. Any reference to California statutes includes any regulations promulgated thereunder and is deemed to include any successor or amended version of the referenced statute or regulatory provision.
"A-license" means a state license issued by the Bureau of Cannabis Regulation for cannabis or cannabis products that are intended for adults twenty-one years of age and over and who do not possess physician's recommendations.
"A-licensee" means any person holding a license under this chapter for cannabis or cannabis products that are intended for adults twenty-one years of age and over and who do not possess physician's recommendations.
"Applicant" means an owner applying for a city license pursuant to this chapter.
"Batch" means a specific quantity of homogeneous cannabis or cannabis product that is one of the following types:
1. "Harvest batch" means a specifically identified quantity of dried flower or trim, leaves, and other cannabis plant matter that is uniform in strain, harvested at the same time, and, if applicable, cultivated using the same pesticides and other agricultural chemicals and harvested at the same time.
2. "Manufactured cannabis batch" means either of the following:
a. An amount of cannabis concentrates or extract that is produced in one production cycle using the same extraction methods and standard operating procedures.
b. An amount of a type of manufactured cannabis produced in one production cycle using the same formulation and standard operating procedures.
"Building official" means the building official of the city of American Canyon community development department or designee.
"Bureau" means the Bureau of Cannabis Control within the Department of Consumer Affairs, formerly named the Bureau of Marijuana Control, the Bureau of Medical Cannabis Regulation, and the Bureau of Medical Marijuana Regulation.
"Cannabis" means all parts of the Cannabis sativa Linnaeus, Cannabis indica, or Cannabis ruderalis, whether growing or not; the seeds thereof; the resin, whether crude or purified, extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin. "Cannabis" also means the separated resin, whether crude or purified, obtained from cannabis. "Cannabis" does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. For the purpose of this chapter, "cannabis" does not mean "industrial hemp" as defined by Section 11018.5 of the Health and Safety Code.
"Cannabis accessories" has the same meaning as in Section 11018.2 of the Health and Safety Code.
"Cannabis concentrate" means cannabis that has undergone a process to concentrate one or more active cannabinoids, thereby increasing the product's potency. Resin from granular trichomes from a cannabis plant is a concentrate for purposes of this chapter. A cannabis concentrate is not considered food, as defined by Section 109935 of the Health and Safety Code, or drug, as defined by Section 109925 of the Health and Safety Code.
"Cannabis innovation zone" is defined as a park or campus which is one contiguous commercial area of land which has many cannabis related businesses grouped together. Each individual business would be clearly defined, which has a unique entrance and immovable physical barriers between uniquely licensed premises.
"Cannabis product" means a product containing cannabis or cannabis, including, but not limited to, manufactured cannabis, intended to be sold for use by cannabis patients in California pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at Section 11362.5 of the California Health and Safety Code (as the same may be amended from time to time) or pursuant to the Adult Use of Cannabis Act. For purposes of this chapter, "cannabis" does not include industrial hemp as defined by Section 81000 of the California Food and Agricultural Code or Section 11018.5 of the California Health and Safety Code.
"Cannabis products" has the same meaning as in Section 11018.1 of the Health and Safety Code.
"Canopy" means the designated area(s) at a licensed premises, except nurseries that will contain mature plants at any point in time. Canopy: (1) shall be calculated in square feet and measured using clearly identifiable boundaries of all area(s) that will contain mature plants at any point in time, including all of the space(s) within the boundaries; and (2) may be noncontiguous but each unique area included in the total canopy calculation shall be separated by an identifiable boundary which include, but are not limited to: interior walls, shelves, greenhouse walls, hoop house walls, garden benches, hedgerows, fencing, garden beds or garden plots; and if mature plants are being cultivated using a shelving system, the surface area of each level shall be included in the total canopy calculation.
"Caregiver" or "primary caregiver" has the same meaning as that term is defined in Section 11362.7 of the California Health and Safety Code.
"Child resistant" means designed or constructed to be significantly difficult for children under five years of age to open, and not difficult for normal adults to use properly.
"City" means the city of American Canyon, a general law city.
"City manager" means city manager or designee.
"Commercial cannabis activity" includes the cultivation, possession, manufacture, distribution, processing, storing, laboratory testing, packaging, labeling, transportation, delivery or sale of cannabis and cannabis products as provided for in this chapter.
"Commercial cannabis business" means a business which engages in medicinal or adult-use commercial cannabis activity as authorized by the city of American Canyon Municipal Code.
"Commercial cannabis business permit" means a regulatory permit issued by the city of American Canyon pursuant to this chapter to a commercial cannabis business and is required before any commercial cannabis activity may be conducted in the city. The initial permit and annual renewal of a commercial cannabis business permit is made expressly contingent upon the business' ongoing compliance with all of the requirements of this chapter and any regulations adopted by the city governing the commercial cannabis activity at issue.
"Community development director" means the community development director of the city of American Canyon community development department or designee.
"Cultivation" means any activity involving the planting, growing, harvesting, drying, curing, grading, or trimming of cannabis.
"Cultivation site" means a location where cannabis is planted, grown, harvested, dried, cured, graded, or trimmed, or a location where any combination of those activities occurs.
"Customer" means a natural person twenty-one years of age or over, or a natural person eighteen years of age or older who possesses a physician's recommendation, or a medical marijuana identification card.
"Day care center" has the same meaning as in Section 1596.76 of the Health and Safety Code.
"Delivery" means the commercial transfer of cannabis or cannabis products to a customer. "Delivery" also includes the use by a retailer of any technology platform owned and controlled by the retailer.
"Director" means the Director of Consumer Affairs.
"Dispensing" means any activity involving the retail sale of cannabis or cannabis products from a retailer.
"Distribution" means the procurement, sale, and transport of cannabis and cannabis products between licensees.
"Distributor" means a person holding a valid commercial cannabis business permit for distribution issued by the city of American Canyon, and, a valid state license for distribution, required by state law to engage in the business of purchasing cannabis from a licensed cultivator, or cannabis products from a license manufacturer, for sale to a licensed retailer.
"Dried flower" means all dead cannabis that has been harvested, dried, cured, or otherwise processed, excluding leaves and stems.
"Edible cannabis product" means cannabis product that is intended to be used, in whole or in part, for human consumption, including, but not limited to, chewing gum, but excluding products set forth in Division 15 (commencing with Section 32501) of the Food and Agricultural Code. An edible cannabis product is not considered food, as defined by Section 109935 of the Health and Safety Code, or a drug, as defined by Section 109925 of the Health and Safety Code.
"Fund" means the cannabis control fund established pursuant to Business and Professions Code Section 26210.15.
"Greenhouse" means a fully enclosed permanent structure that is clad in transparent material with climate control, such as heating and ventilation capabilities and supplemental artificial lighting, and that uses a combination of natural and supplemental lighting for cultivation.
"Keef," also known as "kief" or "keif," refers to the resinous trichomes of cannabis that may accumulate in containers or be sifted from loose, dry cannabis flower with a mesh screen or sieve.
"Kind" means applicable type or designation regarding a particular cannabis variant or cannabis product type, including, but not limited to, strain name or other grower trademark, or growing area designation.
"Labeling" means any label or other written, printed, or graphic matter upon a cannabis product, upon its container.
"Labor peace agreement" means an agreement between a licensee and any bona fide labor organization that, at a minimum, protects the state's proprietary interests by prohibiting labor organizations and members from engaging in picketing, work stoppages, boycotts, and any other economic interference with the applicant's business. This agreement means that the applicant has agreed not to disrupt efforts by the bona fide labor organization to communicate with, and attempt to organize and represent, the applicant's employees. The agreement shall provide a bona fide labor organization access at reasonable times to areas in which the applicant's employees work, for the purpose of meeting with employees to discuss their right to representation, employment rights under state law, and terms and conditions of employment. This type of agreement shall not mandate a particular method of election or certification of the bona fide labor organization.
"License" means a state license issued by the state and includes both an A-license and an M-license, as well as a testing laboratory license.
"Licensee" means any person holding a license under this chapter, regardless of whether the license held is an A-license or an M-license, and includes the holder of a testing laboratory license.
"Licensing authority" means the city of American Canyon and/or state agency responsible for the issuance, renewal, or reinstatement of the license, or the city of American Canyon and/or state agency authorized to take disciplinary action against the licensee.
"Limited-access area" means an area in which cannabis is stored or held and is only accessible to some licensee and authorized personnel.
"Live plants" means living cannabis flowers and plants, including seeds, immature plants, and vegetative stage plants.
"Local jurisdiction" means a city, county or city and county.
"Lot" means a batch or a specifically identified portion of a batch.
"M-license" means a state license issued by the state for commercial cannabis activity involving medicinal cannabis.
"M-licensee" means any person holding a license by the state for commercial cannabis activity involving medicinal cannabis.
"Manufacture" means to compound, blend, extract, infuse, or otherwise make or prepare a cannabis product.
"Manufactured cannabis" means raw cannabis that has undergone a process whereby the raw agricultural product has been transformed into a concentrate, extraction or other manufactured product intended for internal consumption through inhalation or oral ingestion or for topical application.
"Manufacturer" means a licensee that conducts the production, preparation, propagation, or compounding of cannabis or cannabis products either directly or indirectly or by extraction methods, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis at a fixed location that packages or repackages cannabis or cannabis products or labels or container.
"Manufacturing site" means a location that produces, prepares, propagates, or compounds cannabis or cannabis products, directly or indirectly, by extraction methods, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and is owned and operated by a person issued a valid commercial cannabis business permit for manufacturing from the city of American Canyon and, a valid state license as required for manufacturing of cannabis products.
"Medicinal cannabis" or "medicinal cannabis product" means cannabis or a cannabis product, respectively, intended to be sold for use pursuant to the Compassionate Use Act of 1996 (Proposition 215), found at Section 11362.5 of the Health and Safety Code, by a medicinal cannabis patient in California who possesses a physician's recommendation.
"Microbusiness" means the cultivation of cannabis on an area less than ten thousand square feet, by an entity authorized to act as a licensed distributor, Level 1 manufacturer, and retailer under state law, provided such licensee can demonstrate compliance with all requirements imposed by state law on licensed cultivators, distributors, Level 1 manufacturers, and retailers to the extent the licensee engages in such activities. Microbusiness licenses that authorize cultivation of cannabis shall include the license conditions described in subdivision (b) of Section 26060.1 of the Business and Professions Code.
"Nonvolatile solvent" means any solvent used in the extraction process that is not a volatile solvent. For purposes of this chapter, a nonvolatile solvent includes carbon dioxide (CO2) used for extraction and ethanol used for extraction or post-extraction processing.
"Nursery" means a licensee that produces only clones, immature plants, seeds, and other agricultural products used specifically, for the propagation and cultivation of cannabis.
"Operation" means any act for which licensure is required under the provisions of this chapter, or any commercial transfer of cannabis or cannabis products.
"Owner" means any of the following:
1. A person with an aggregate ownership interest of twenty percent or more in the person applying for a license or a licensee, unless the interest is solely a security, lien, or encumbrance.
2. The manager of a nonprofit or other entity.
3. A member of the board of directors of a nonprofit.
4. An individual who will be participating in the direction, control, or management of the business applying for a license, or who has a financial interest in the business other than a fixed lease of real property.
"Package" means any container or receptacle used for holding cannabis or cannabis products.
"Patient" or "qualified patient" shall have the same definition as California Health and Safety Code Section 11362.7 et seq., as it may be amended, and which means a person who is entitled to the protections of California Health and Safety Code Section 11362.5.10.
"Person" includes any individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular.
"Person with an identification card" shall have the meaning given that term by California Health and Safety Code Section 11362.7.
"Physician's recommendation" means a recommendation by a physician and surgeon that a patient use cannabis provided in accordance with the Compassionate Use Act of 1996 (Proposition 215), found at Section 11362.5 of the Health and Safety Code.
"Premises" means the designated structure or structures and land specified in the application that is owned, leased, or otherwise held under the control of the applicant or licensee where the commercial cannabis activity will be or is conducted. The premises shall be a contiguous area and shall only be occupied by one licensee unless the operator is granted an M-license and A-license for the same type of activity and such operation is lawful under state and local laws, rules and regulations.
"Processing" means a cultivation site that conducts only trimming, drying, curing, grading, packaging, or labeling of cannabis and nonmanufactured cannabis products.
"Purchaser" means the customer who is engaged in a transaction with a licensee for purposes of obtaining cannabis or cannabis products.
"Retailer" means a commercial cannabis business facility where cannabis, cannabis products, or devices for the use of cannabis or cannabis products are offered, either individually or in any combination, for retail sale, including an establishment (whether fixed or mobile) that delivers, pursuant to express authorization, cannabis and cannabis products as part of a retail sale, and where the operator holds a valid commercial cannabis business permit from the city of American Canyon authorizing the operation of a retailer, and a valid state license as required by state law to operate a retailer.
"Sell," "sale," and "to sell" include any transaction whereby, for any consideration, title to cannabis or cannabis products is transferred from one person to another, and includes the delivery of cannabis or cannabis products pursuant to an order placed for the purchase of the same and soliciting or receiving an order for the same, but does not include the return of cannabis or cannabis products by a licensee to the licensee from whom the cannabis or cannabis product was purchased.
"State license" means a permit or license issued by the state of California, or one of its departments or divisions, under MAUCRSA and any subsequent state of California legislation regarding the same to engage in commercial cannabis activity.
"Testing laboratory" means a laboratory, facility, or entity in the state that offers or performs tests of cannabis or cannabis products and that is both of the following:
1. Accredited by an accrediting body that is independent from all other persons involved in commercial cannabis activity in the state.
2. Licensed by the Bureau.
"Topical cannabis" means a product intended for external application and/or absorption through the skin. A topical cannabis product is not considered a drug as defined by Section 109925 of the California Health and Safety Code.
"Transport" means the transfer of cannabis products from the permitted business location of one licensee to the permitted business location of another licensee, for the purposes of conducting commercial cannabis activity authorized by MAUCRSA which may be amended or repealed by any subsequent state of California legislation regarding the same.
"Unique identifier" means an alphanumeric code or designation used for reference to a specific plant on a licensed premises and any cannabis or cannabis product derived or manufactured from that plant.
"Volatile solvent" means any solvent that is or produces a flammable gas or vapor that, when present in air in sufficient quantities, will create explosive or ignitable mixtures. Examples of volatile solvents include, but are not limited to, butane, hexane, and propane.
"Youth center" means any public or private facility that is primarily used to host recreation or social activities for minors, including, but not limited to, private youth membership organizations or clubs, social service teenage club facilities, video arcades where ten or more video games or game machines or devices are operated, and where minors are legally permitted to conduct business, or similar amusement park facilities. It shall also include a park, playground or recreational area specifically designed to be used by children which has play equipment installed, including public grounds designed for athletic activities such as baseball, softball, soccer, or basketball or any similar facility located on a public or private school grounds, or on city, county or state parks. This definition shall not include any private martial arts, yoga, ballet, music, art studio or similar studio of this nature nor shall it include any private gym, athletic training facility, pizza parlor, dentist office, doctor's office primarily serving children or a location which is primarily utilized as an administrative office or facility for youth programs or organizations.
5.10.060 Commercial cannabis business permit required to engage in commercial cannabis business.
(A) A commercial cannabis business is limited to indoor commercial cultivation, manufacturing, distribution, retail non-storefront, testing labs, and microbusinesses that shall include only indoor cultivation, distribution, manufacturing, testing labs, and retail non-storefront, for cannabis and cannabis products.
(B) No person may engage in any commercial cannabis business or in any commercial cannabis activity within the city of American Canyon unless the person: (1) has a valid commercial cannabis business permit from the city of American Canyon; (2) has a valid state of California seller's permit; and (3) is currently in compliance with all applicable state and local laws and regulations pertaining to the commercial cannabis business and the commercial cannabis activities, including the duty to obtain any required state licenses.
5.10.070 Cannabis employee permit required.
(A) Prior to offering employment to a cannabis employee candidate, the cannabis business shall conduct a pre-screening process of the successful candidate.
(B) Any person who is an employee or who otherwise works within a commercial cannabis business must be legally authorized to do so under applicable state law.
(C) Any person who is an employee or who otherwise works within a commercial cannabis business must obtain a commercial cannabis employee work permit from the city prior to performing any work at any commercial cannabis business.
(D) Applications for a commercial cannabis employee work permit shall be developed, made available, and processed by the city manager and shall include, but not be limited to, the following information:
(1) Name, address, and phone number of the applicant;
(2) Age and verification of applicant. A copy of a birth certificate, driver's license, government issued identification card, passport or other proof that the applicant is at least twenty-one years of age must be submitted with the application;
(3) Name, address of the commercial cannabis business where the person will be employed, and the name of the primary manager of that business;
(4) A list of any crimes enumerated in California Business and Professions Code Section 26057(b)(4) for which the applicant or employee has been convicted;
(5) Name, address, and contact person for any previous employers from which the applicant was fired, resigned, or asked to leave and the reasons for such dismissal or firing;
(6) The application shall be accompanied by fingerprints and a recent photograph of the applicant in a form and manner as required by the city manager;
(7) A signed statement under penalty of perjury that the information provided is true and correct;
(8) If applicable, verification that the applicant is a qualified patient or primary caregiver;
(9) A fee paid in an amount set by resolution of the city council in an amount necessary to cover the costs of administering the employee work permit programs. The fee is non-refundable and shall not be returned in the event the work permit is denied or revoked.
(E) The city manager shall review the application for completeness, shall conduct a background check to determine whether the applicant was convicted of a crime or left a previous employer for reasons that show the applicant:
(1) Has committed any act involving dishonesty, fraud, or deceit, as defined in Section 480 of the Business and Professions Code; or
(2) Has committed a felony or misdemeanor involving fraud, deceit, embezzlement; or
(3) Was convicted of a violent felony, a crime of moral turpitude; and/or
(4) The illegal use, possession, transportation, distribution or similar activities related to controlled substances, as defined in the Federal Controlled Substances Act, except for cannabis related offenses for which the conviction occurred after the passage of the Compassionate Use Act of 1996.
Discovery of these facts showing that the applicant is dishonest or has been convicted of those types of crimes are grounds for denial of the permit. Where the applicant's sentence (including any term of probation, incarceration, or supervised release) for possession of, possession for sale, sale, manufacture, transportation, or cultivation of a controlled substance is completed, such underlying conviction shall not be the sole ground for denial of a commercial cannabis work permit. Furthermore, an applicant shall not be denied a permit if the denial is based solely on any of the following:
1. A conviction for any crime listed in subsection (D)(4) of this section for which the applicant has obtained a certificate of rehabilitation pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the California Penal Code; or
2. A conviction that was subsequently dismissed pursuant to Section 1203.4, 1203.4a, or 1203.41 of the California Penal Code or any other provision of state law allowing for dismissal of a conviction.
(F) The city manager shall issue the commercial cannabis work permit or a written denial to the applicant within thirty days of the date the application was deemed complete. In the event the cannabis work permit cannot be issued within this time period, the city manager may issue a temporary work permit for an employee upon completing a preliminary background check and if the business can demonstrate to the city manager that the employee is necessary for the operation of the business. The temporary permit may be immediately revoked by the city manager upon determination that the applicant has failed the background check or upon the issuance of the permanent work permit.
(G) A work permit shall be valid for a twelve-month period and must be renewed on an annual basis. Renewal applications shall contain all the information required in subsection B of this section, including the payment of a renewal application fee in an amount to be set by resolution of the city council.
(H) In the event a person changes employment from one commercial cannabis business in the city to another, the work permit holder shall notify the city manager in writing of the change within ten days, or the work permit shall be suspended or revoked, and such person shall not be permitted to work at any commercial cannabis business in the city.
(I) The city may immediately revoke the commercial cannabis work permit should the permit holder be convicted of a crime listed in subsections C and D of this section or if facts become known to the city manager that the permit holder has engaged in dishonest activities.
(J) The city manager is hereby authorized to enforce all regulations necessary to implement the work permit process and requirements.
(K) The applicant may appeal the denial or revocation of a commercial cannabis work permit by filing a notice of appeal with the city clerk within ten days of the date the applicant received the notice of denial; which appeal shall be conducted as set forth in Section 5.10.140 of this chapter.
(L) The city manager shall issue a permit in the form of a personal identification card that can be worn in a prominent and visible location. The identification card shall be maintained in good and readable condition at all times.
5.10.080 Maximum number of authorized commercial cannabis businesses.
The number of commercial cannabis businesses that may be permitted to operate in the city shall be established by resolution of the city council.
(A) This section is intended to identify a maximum number of commercial cannabis businesses that may be authorized to operate in the city. Nothing in this chapter creates a mandate that the city council must authorize any or all of the commercial cannabis businesses if it is determined that the applicant(s) do not meet the application standards or will negatively impact public health, safety, or welfare.
(B) Each year following the city council's initial award of permits, if any, or at any time in the city council's discretion, the city council may reassess the number of commercial cannabis businesses that may be authorized. The city council in its discretion, may determine by resolution whether to reduce, maintain or expand the number of commercial cannabis businesses.
5.10.090 Initial application procedure.
(A) The city manager shall adopt detailed objective review criteria such as a point system or equivalent quantitative evaluation scale tied to each set of review criteria ("review criteria"), to govern the commercial cannabis business permit(s) application process. The city manager shall be authorized to prepare the necessary forms, adopt any necessary rules to the application, regulations and processes, solicit applications, and conduct initial evaluations of the applicants.
(B) At the time of filing, each applicant shall pay an application fee established by resolution of the city council, to reimburse the city for all costs incurred in the application process.
(C) After the initial review, ranking, and scoring under the review criteria, the city manager will make a final determination in accordance with this section.
(D) The City's Reservation of Rights. The city reserves the right to reject any or all applications. Prior to permit issuance, the city may also modify, postpone, or cancel any request for applications, or the entire program under this chapter, at any time without liability, obligation, or commitment to any party, firm, or organization, to the extent permitted under California state law. Persons submitting applications assume the risk that all or any part of the program, or any particular category of permit potentially authorized under this chapter, may be cancelled at any time prior to permit issuance. The city further reserves the right to request and obtain additional information from any candidate submitting an application. In addition to any other justification provided a failure to comply with other requirements in this chapter, an application risks being rejected for any of the following reasons:
(1) Proposal received after designated time and date; or
(2) Proposal not containing the required elements, exhibits, nor organized in the required format; or
(3) Proposal considered not fully responsive to this request for permit application.
5.10.100 Personnel prohibited from holding a license or employee work permit.
(A) Any person, including, but not limited to, any individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, and the plural as well as the singular in which any of the following actions or notices have been issued in noncompliance, shall be prohibited from holding a cannabis commercial license or employee work permit in the city of American Canyon. In addition, the following shall be grounds for denial of a local license or employee work permit:
(1) The applicant has been denied a license or has had a license suspended or revoked by any city, county, city and county or any other state cannabis licensing authority;
(2) The applicant was notified that they were conducting commercial cannabis activity in noncompliance with Title 19 or other city of American Canyon ordinances, codes and requirements in which they failed to discontinue operating in a timely manner;
(3) Evidence that the applicant was in noncompliance of properly paying federal, state or local taxes and/or fees when notified by the appropriate agencies;
(4) As of November 14, 2018, applicant was conducting commercial cannabis activity in the city of American Canyon in violation of local and state law.
(B) No person shall be issued a commercial cannabis permit to operate who enters into an agreement to lease, sublease or any other agreement, regardless of whether it is verbally or in writing to any terms of use of the premises from a property owner, commercial broker or any third party, that is in violation of this section unless that property is leased at fair market value and such lease, sublease or agreement does not have any terms or conditions for the cannabis permit licensee to pay the property owner, commercial broker, or any third party a percentage of gross receipts, royalties, equity, or other unreasonable compensation as determined by the city. In addition, all leases, subleases, or other agreements must be based on a monthly rate.
5.10.110 Expiration of commercial cannabis business permits.
Each commercial cannabis business permit issued pursuant to this chapter shall expire twelve months after the date of its issuance. Commercial cannabis permits may be renewed as provided in Section 5.10.130.
5.10.120 Revocation of permits.
Commercial cannabis business permits may be revoked for any violation of any law and/or any rule, regulation and/or standard adopted pursuant to Section 5.10.140, or pursuant to any policy, procedure or regulation in this chapter.
5.10.130 Renewal applications.
(A) An application for renewal of a commercial cannabis business permit shall be filed at least sixty calendar days prior to the expiration date of the current permit.
(B) The renewal application shall contain all the information required for new applications.
(C) The applicant shall pay a fee in an amount to be set by the city council to cover the costs of processing the renewal permit application, together with any costs incurred by the city to administer the program created under this chapter.
(D) An application for renewal of a commercial cannabis business permit shall be rejected if any of the following exists:
(1) The application is filed less than sixty days before its expiration.
(2) The commercial cannabis business permit is suspended or revoked at the time of the application.
(3) The commercial cannabis business has not been in regular and continuous operation in the four months prior to the renewal application.
(4) The commercial cannabis business has failed to conform to the requirements of this chapter, or of any regulations adopted pursuant to this chapter.
(5) The permittee fails or is unable to renew its state of California license.
(6) If the city or state has determined, based on substantial evidence, that the permittee or applicant is in violation of the requirements of this chapter, of this code, or of the state rules and regulations, and the city or state has determined that the violation is grounds for termination or revocation of the commercial cannabis business permit.
(E) The city manager is authorized to make all decisions concerning the issuance of a renewal permit. In making the decision, the city manager is authorized to impose additional conditions to a renewal permit, if it is determined to be necessary to ensure compliance with state or local laws and regulations or to preserve the public health, safety or welfare. Appeals from the decision of the city manager shall be handled pursuant to Sections 5.10.150 through 5.10.170.
(F) If a renewal application is rejected, a person may file a new application pursuant to this chapter no sooner than one year from the date of the rejection.
5.10.140 Effect of state license suspension, revocation, or termination.
Suspension of a license issued by the state of California, or by any of its departments or divisions, shall immediately suspend the ability of a commercial cannabis business to operate within the city, until the state of California, or its respective department or division, reinstates or reissues the state license. Should the state of California, or any of its departments or divisions, revoke or terminate the license of a commercial cannabis business, such revocation or termination shall also revoke or terminate the ability of a commercial cannabis business to operate within the city of American Canyon.
5.10.150 Appeals.
Unless specifically provided elsewhere to the contrary, whenever an appeal is provided for in this chapter from a decision of the city manager, the appeal shall be conducted as prescribed in this chapter.
5.10.160 Written request for appeal.
(A) Within ten calendar days after the date of a decision of the city manager to revoke, suspend or deny a permit, or to add conditions to a permit, an aggrieved party may appeal such action by filing a written appeal with the city clerk setting forth the reasons why the decision was not proper.
(B) At the time of filing the appellant shall pay the designated appeal fee, established by resolution of the city council from time to time.
5.10.170 Appeal hearing.
(A) Upon receipt of the written appeal, the city clerk shall set the matter for a hearing before the city manager. The city manager shall hear the matter de novo and shall conduct the hearing pursuant to the procedures set forth by the city.
(B) The appeal shall be held within a reasonable time after the filing the appeal, but in no event later than ninety days from the date of such filing. The city shall notify the appellant of the time and location at least ten days prior to the date of the hearing.
(C) At the hearing, the appellant may present any information they deem relevant to the decision appealed. The formal rules of evidence and procedure applicable in a court of law shall not apply to the hearing.
(D) The decision of the city manager shall be final.
5.10.180 Permittee selection process.
(A) The city council shall adopt a procedure guideline and review criteria by which the top applicants in each category of each commercial cannabis business shall be evaluated in a final determination by the city manager.
(B) At least ten days prior to the public hearing, notice of the public hearing shall be sent to all property owners located within six hundred feet of the proposed business locations of each of the finalists to be considered by the city manager.
(C) The city manager shall either deny or approve the final candidates and shall select the top candidates in each category of the commercial cannabis businesses. The city manager's decision as to the selection of the prevailing candidates may be appealed to the city council.
(D) Issuance of a commercial cannabis business permit does not create a land use entitlement. The commercial cannabis business permit shall only be for a term of twelve months and shall expire at the end of the twelve month period unless it is renewed as provided herein. Furthermore, no permittee may begin operations, notwithstanding the issuance of a permit, unless all of the state and local laws and regulations, including, but not limited to, the requirements of this chapter and of the permit, have been complied with. Until a state license is available and obtained by the permitted operator as set forth in Section 5.10.160.
(E) If an application is denied, a new application may not be filed for one year from the date of the denial.
(F) Each person granted a commercial cannabis business permit shall be required to pay the permit fee established by resolution of the city council, to cover the costs of administering the commercial cannabis business permit program created in this chapter.
5.10.190 Change in location—Updated registration form.
(A) Any time the commercial cannabis location specified in the regulatory permit is changed, the applicant shall re-register with the city manager. The process and the fees for re-registration shall be the same as the process and fees set forth for registration in Sections 5.10.130(C) and 5.10.200(A).
(B) Within fifteen calendar days of any other change in the information provided in the registration form or any change in status of compliance with the provisions of this chapter, including any change in the commercial cannabis business ownership or management members, the applicant shall file an updated registration form with the city manager for review along with a registration amendment fee, as set forth in Sections 5.10.130(C) and 5.10.200(A).
5.10.200 Transfer of cannabis business permit.
(A) The owner of a cannabis business permit shall not transfer ownership or control of the permit to another person or entity unless and until the transferee obtains an amendment to the permit from the city manager stating that the transferee is now the permittee. Such an amendment may be obtained only if the transferee files an application with the city manager in accordance with all provisions of this chapter (as though the transferee were applying for an original cannabis business permit) accompanied by a transfer fee in an amount set by resolution of the city council (or if not set, shall be the same amount as the application fee), and the city manager determines, after hearing, in accordance with this section that the transferee passed the background check required for permittees and meets all other requirements of this chapter.
(B) Commercial cannabis business permits issued through the grant of a transfer by the city manager shall be valid for a period of one year beginning on the day the city manager approves the transfer of the permit. Before the transferee's permit expires, the transferee shall apply for a renewal permit in the manner required by this chapter.
(C) Changes in ownership of a permittee's business structure or a substantial change in the ownership of a permittee business entity (changes of more than fifty-one percent of the original ownership), must be approved by the city manager through the transfer process contained in subsection A of this section. Failure to comply with this provision is grounds for permit revocation.
(D) A permittee may change the form of business entity without applying to the city manager for a transfer of permit, provided that either:
(1) The membership of the new business entity is substantially similar to original permit holder business entity (at least fifty-one percent of the membership is identical); or
(2) If the original permittee is an unincorporated association, mutual or public benefit corporation, agricultural or consumer cooperative corporation and subsequently transitions to or forms a new business entity as allowed under the MAUCRSA and to comply with Section 5.10.060(B), provided that the board of directors (or in the case of an unincorporated association, the individual(s) listed on the city permit application) of the original permittee entity are the same as the new business entity.
Although a transfer is not required in these two circumstances, the permit holder is required to notify the city manager in writing of the change within ten days of the change. Failure to comply with this provision is grounds for permit revocation.
(E) No commercial cannabis business permit may be transferred when the city manager has notified the permittee that the permit has been or may be suspended or revoked.
(F) Any attempt to transfer a commercial cannabis business permit either directly or indirectly in violation of this section is hereby declared void, and such a purported transfer shall be deemed a ground for revocation of the permit.
5.10.210 City business license.
Prior to commencing operations, a commercial cannabis business shall obtain a city of American Canyon business license.
5.10.220 Building permits and inspection.
Prior to commencing operations, a commercial cannabis business shall be subject to a building inspection and must obtain all required permits and approvals which would otherwise be required for any business of the same size and intensity operating in that zoning district. This includes, but is not limited to, obtaining any required building permit(s), American Canyon fire protection district approvals, Napa County health department approvals and other applicable zoning and land use permit(s) and approvals.
5.10.230 Certification from the community development director.
Prior to commencing operations, a commercial cannabis business must obtain a certification from the community development director certifying that the business is located on a site that meets all of the requirements of Title 19 of this code.
5.10.240 Right to occupy and to use property.
As a condition precedent to the city's issuance of a commercial cannabis business permit pursuant to this chapter, any person intending to open and to operate a commercial cannabis business shall provide sufficient evidence of the legal right to occupy and to use the proposed location. In the event the proposed location will be leased from the property owner, the applicant shall be required to provide a signed and notarized statement from the owner of the property, acknowledging that the property owner has read this chapter and consents to the operation of the commercial cannabis business on the owner's property.
5.10.250 Location and design of cannabis businesses.
Cannabis businesses permitted to engage in testing labs or microbusinesses that include only indoor cultivation, distribution, manufacturing, and retail non-storefront, for cannabis and cannabis products are subject to the following zoning and locational requirements:
(A) All cannabis non-store front retail businesses must be located on property zoned GI (general industrial) and must meet all of the requirements for development in this zone; and
(B) Allowable cannabis businesses shall be located in the GI (general industrial) zoning district and must meet all of the requirements for development in this zoning district. The cannabis businesses must also meet all of the following distance requirements:
(1) Cannabis businesses shall be no closer than six hundred feet of any residentially zoned parcel in the city. The distance between the cannabis business and the residential parcel shall be measured from the outer boundaries of the residential parcel to the first structure on the property seeking the commercial cannabis permit.
(2) Cannabis businesses shall be no closer than six hundred feet from any parcel containing any of the following:
(a) A school providing instruction in kindergarten or any grades 1 through 12, (whether public, private, or charter, including pre-school, transitional kindergarten, and K-12);
(b) A commercial daycare center licensed by the city, county, or state that is in existence at the time the license is issued, unless the state licensing authority or the city specifies a different radius; or
(c) A youth center that is in existence at the time the license is issued, unless the state licensing authority or the city specifies a different radius.
(3) In addition to the separation standards described in subsections (B)(1) and (2) of this section, cannabis businesses in the general industrial zoning district may not locate within the "Southern Buffer Zone" as depicted in Figure 5.10.250.
Figure 5.10.250
(C) Each proposed cannabis business project shall:
(1) Conform with the city's general plan, any applicable specific plans, master plans, and design requirements.
(2) Comply with all applicable zoning and related development standards.
(3) Be constructed in a manner that minimizes odors to surrounding uses, and promotes quality design and construction, and consistency with the surrounding properties.
(4) Be adequate in size and shape to accommodate the yards, walls, fences, parking and loading facilities, landscaping and all items required for the development.
(5) Be served by highways adequate in width and improved as necessary to carry the kind and quantity of traffic such use will generate.
(6) Be provided with adequate electricity, sewerage, disposal, water, fire protection and storm drainage facilities for the intended purpose.
5.10.260 Limitations on city's liability.
To the fullest extent permitted by law, the city of American Canyon shall not assume any liability whatsoever with respect to having issued a commercial cannabis business permit pursuant to this chapter or otherwise approving the operation of any commercial cannabis business. As a condition to the approval of any commercial cannabis business permit, the applicant shall be required to meet all of the following conditions before they can receive the commercial cannabis business permit:
(A) Applicant shall execute an agreement, in a form approved by the city attorney, agreeing to indemnify, defend (at applicant's sole cost and expense), and hold the city of American Canyon, and its officers, officials, employees, representatives, and agents, harmless, from any and all claims, losses, damages, injuries, liabilities or losses which arise out of, or which are in any way related to, the city's issuance of the commercial cannabis business permit, the city's decision to approve the operation of the commercial cannabis business or activity, the process used by the city in making its decision, or the alleged violation of any federal, state or local laws by the commercial cannabis business or any of its officers, employees or agents.
(B) Applicant shall maintain insurance at coverage limits, and with conditions thereon determined necessary and appropriate from time to time by the city manager.
(C) Applicant shall reimburse the city of American Canyon for all costs and expenses, including, but not limited to, legal fees and costs and court costs, which the city of American Canyon may be required to pay as a result of any legal challenge related to the city's approval of the applicant's commercial cannabis business permit, or related to the city's approval of a commercial cannabis activity. The city of American Canyon may, at its sole discretion, participate at its own expense in the defense of any such action, but such participation shall not relieve any of the obligations imposed hereunder.
5.10.270 Records and recordkeeping.
(A) Each owner and operator of a commercial cannabis business shall maintain a current register of the names and the contact information (including the name, address, and telephone number) of anyone owning or holding an interest in the commercial cannabis business, and separately of all the officers, managers, employees, agents and volunteers currently employed or otherwise engaged by the commercial cannabis business. The register required by this paragraph shall be provided to the city manager upon a reasonable request.
(B) Each commercial cannabis business shall allow the city of American Canyon officials to have access to the business's books, records, accounts, together with any other data or documents relevant to its permitted commercial cannabis activities, for the purpose of conducting an audit or examination. Books, records, accounts, and any and all relevant data or documents will be produced no later than twenty-four hours after receipt of the city's request, unless otherwise stipulated by the city. The city may require the materials to be submitted in an electronic format that is compatible with the city's software and hardware.
5.10.280 Security measures.
(A) A permitted commercial cannabis business shall implement sufficient security measures to deter and prevent the unauthorized entrance into areas containing cannabis or cannabis products, and to deter and prevent the theft of cannabis or cannabis products at the commercial cannabis business. Except as may otherwise be determined by the city manager, these security measures shall include, but shall not be limited to, all of the following:
(1) Alarm system (perimeter, fire, and panic buttons).
(2) Remote monitoring of alarm systems by licensed security professionals.
(3) Perimeter lighting systems (including motion sensors) for after-hours security.
(4) Perimeter security and lighting as approved by the police chief and director of community development.
(5) Prevent individuals from remaining on the premises of the commercial cannabis business if they are not engaging in an activity directly related to the permitted operations of the commercial cannabis business.
(6) Establish limited access areas accessible only to authorized commercial cannabis business personnel.
(7) Except for live growing plants which are being cultivated at a cultivation facility, all cannabis and cannabis products shall be stored in a secured and locked vault or vault equivalent. All safes and vaults shall be compliant with Underwriter Laboratories burglary-resistant and fire-resistant standards. All cannabis and cannabis products, including live plants that are being cultivated, shall be kept in a manner as to prevent diversion, theft, and loss.
(8) Install twenty-four-hour security surveillance cameras of at least HD-quality to monitor all entrances and exits to and from the premises, all interior spaces within the commercial cannabis business which are open and accessible to the public, all interior spaces where cannabis, cash or currency, is being stored for any period of time on a regular basis and all interior spaces where diversion of cannabis could reasonably occur. All cameras shall record in color. All exterior cameras shall be in weather-proof enclosures, shall be located so as to minimize the possibility of vandalism, and shall have the capability to automatically switch to black and white in low light conditions.
Video recordings shall be maintained for a minimum of ninety days and shall be made available to the city manager upon request. Video shall be of sufficient quality for effective prosecution of any crime found to have occurred on the site of the commercial cannabis business, and shall be capable of enlargement via projection or other means. Internet protocol address information shall be provided to the American Canyon police department by the commercial cannabis business, to facilitate remote monitoring of security cameras by the department or its designee.
(9) Sensors shall be installed to detect entry and exit from all secure areas, and shall be monitored in real time by a security company licensed by the state of California Bureau of Security and Investigative Services.
(10) Panic buttons shall be installed in all commercial cannabis businesses with direct notification to American Canyon police department dispatch, and shall be configured to immediately alert dispatch for the American Canyon police department.
(11) A professionally installed, maintained, and monitored real-time alarm system by a security company licensed by the state of California Bureau of Security and Investigative Services.
(12) Security personnel shall be on-site twenty-four hours a day or alternative security as authorized by the city manager, and must have a verified response security patrol when closed. Security personnel shall be licensed by the state of California Bureau of Security and Investigative Services personnel and shall be subject to the prior review and approval of the city manager, with such approval not to be unreasonably withheld. Firearms may be carried by security personnel while they are on duty if authorized by the chief of police.
(13) Each commercial cannabis business shall have the capability to remain secure during a power outage and shall ensure that all access doors are not solely controlled by an electronic access panel to ensure that locks are not released during a power outage.
(14) Entrance areas are to be locked at all times and under the control of a designated responsible party that is either: (a) an employee of the commercial cannabis business; or (b) a licensed security professional.
(15) Each commercial cannabis business shall have an accounting software system in place to provide point of sale data as well as audit trails or both product and cash, where applicable.
(16) Each commercial cannabis business shall demonstrate to the chief of police, city manager, compliance with the state's track and trace system for cannabis and cannabis products, as soon as it is operational.
(17) Each commercial cannabis business shall have state of the art network security protocols in place to protect computer information and all digital data.
(18) Exterior vegetation shall be planted, altered and maintained in a fashion that precludes its use as a hiding place for persons on the premises.
(B) Each commercial cannabis business shall identify a designated security representative/liaison to the city of American Canyon, who shall be reasonably available to meet with the city manager regarding any security related measures or and operational issues. The designated security representative/liaison shall, on behalf of the commercial cannabis business, annually maintain a copy of the current security plan on the premises of the business, to present to the city manager upon request that meets the following requirements:
(1) Confirm that a designated manager will be on duty during business hours and will be responsible for monitoring the behavior of employees.
(2) Identify all managers of the commercial cannabis business and their contact phone numbers.
(3) Confirm that first aid supplies and operational fire extinguishers are located in the service areas and the manager's office.
(4) Confirm that burglar, fire, and panic alarms are operational and monitored by a licensed security company twenty-four hours a day, seven days a week, and provides contact information for each licensed security company.
(5) Identify a sufficient number of licensed, interior and exterior security personnel who will monitor individuals inside and outside the commercial cannabis business, the parking lot, and any adjacent property under the business's control.
(6) Confirm that the licensed security personnel shall regularly monitor the parking lot and any adjacent property to ensure that these areas are: (a) free of individuals loitering or causing a disturbance; (b) are cleared of employees and their vehicles one-half hour after closing.
(C) As part of the application and permitting process each commercial cannabis business shall have a storage and transportation plan, which describes in detail the procedures for safely and securely storing and transporting all cannabis, cannabis products, and any currency.
(D) The commercial cannabis business shall cooperate with the city whenever the city manager makes a request, without prior notice, to inspect or audit the effectiveness of any security plan or of any other requirement of this chapter.
(E) A commercial cannabis business shall notify the city manager within twenty-four hours after discovering any of the following:
(1) Significant discrepancies identified during inventory. The level of significance shall be determined by the regulations adopted by the city manager.
(2) Diversion, theft, loss, or any criminal activity involving the commercial cannabis business or any agent or employee of the commercial cannabis business.
(3) The loss or unauthorized alteration of records related to cannabis, customers or employees or agents of the commercial cannabis business.
(4) Any other breach of security.
(F) Compliance with the foregoing requirements shall be verified by the city manager prior to commencing business operations. The city manager may supplement these security requirements once operations begin, subject to review by the city manager if requested by the business owner.
5.10.290 Restriction on alcohol and tobacco sales.
(A) No person shall cause or permit the sale, dispensing, or consumption of alcoholic beverages on or about the premises of the commercial cannabis business.
(B) No person shall cause or permit the sale or tobacco products on or about the premises of the commercial cannabis business.
5.10.300 Compliance with laws.
It is the responsibility of the owners and operators of the commercial cannabis business to ensure that it operates at all times in a manner compliant with all applicable state and local laws, and any regulations promulgated thereunder. Nothing in this chapter shall be construed as authorizing any actions that violate state law or local law with respect to the operation of a commercial cannabis business. It shall be the responsibility of the owners and the operators of the commercial cannabis business to ensure that the commercial cannabis business is, at all times, operating in a manner compliant with all applicable state and local laws, the Medical and Adult Use Cannabis and Regulation Act (MAUCRSA) any subsequently enacted state law or regulatory, licensing, or certification requirements, and any specific, additional operating procedures or requirements which may be imposed as conditions of approval of the commercial cannabis business permit. Nothing in this chapter shall be construed as authorizing any actions which violate state law with regard to the operation of a commercial cannabis business.
5.10.310 Fees and charges.
(A) No person may commence or continue any commercial cannabis activity in the city, without timely paying in full all fees and charges required for the operation of a commercial cannabis activity. Fees and charges associated with the operation of a commercial cannabis activity shall be established by resolution of the city council which may be amended from time to time.
(B) All commercial cannabis businesses authorized to operate under this chapter shall pay all sales, use, business and other applicable taxes, and all license, registration, and other fees required under federal, state and local law. Each commercial cannabis business shall cooperate with the city with respect to any reasonable request to audit the commercial cannabis business's books and records for the purpose of verifying compliance with this section, including, but not limited to, a verification of the amount of taxes required to be paid during any period.
5.10.320 Miscellaneous operating requirements.
(A) All cannabis and cannabis products sold, distributed or manufactured shall be cultivated, manufactured, and transported by licensed facilities that maintain operations in full conformance with the State and local regulations.
(B) Commercial cannabis businesses may operate only during the hours specified in the commercial cannabis business permit issued by the city.
(C) Restriction on Consumption. cannabis shall not be consumed by any employee on the premises of any commercial cannabis business.
(D) No cannabis or cannabis products or graphics depicting cannabis or cannabis products shall be visible from the exterior of any property issued a commercial cannabis business permit, or on any of the vehicles owned or used as part of the commercial cannabis business. No outdoor storage of cannabis or cannabis products is permitted at any time.
(E) Emergency Contact. Each commercial cannabis business shall provide the city manager with the name, telephone number (both land line and mobile, if available) of an on-site employee or owner to whom emergency notice can be provided at any hour of the day.
(F) Signage and Notices.
(1) Business identification signage for a commercial cannabis business shall conform to the requirements of Chapter 19.23 of this code, including, but not limited to, seeking the issuance of a city sign permit.
(2) No signs placed on the premises of a commercial cannabis business shall obstruct any entrance or exit to the building or any window.
(3) Each entrance to a commercial cannabis business shall be visibly posted with a clear and legible notice indicating that smoking, ingesting, or otherwise consuming cannabis on the premises or in the areas adjacent to the commercial cannabis business is prohibited.
(G) Minors.
(1) Persons under the age of twenty-one years shall not be allowed on the premises of a commercial cannabis business and shall not be allowed to serve as a driver for a mobile delivery service. It is unlawful and a violation of this chapter for any person to employ any person at a commercial cannabis business who is not at least twenty-one years of age.
(2) The entrance to the commercial cannabis business shall be clearly and legibly posted with a notice that no person under the age of twenty-one years of age is permitted to enter upon the premises of the commercial cannabis business.
(H) Odor Control. Odor control devices and techniques shall be incorporated in all commercial cannabis businesses to ensure that odors from cannabis are not detectable off-site in accordance with Section 19.14.040(D)(2) of this code.
(I) Display of Permit and City Business License. The original copy of the commercial cannabis business permit issued by the city pursuant to this chapter and the city-issued business license shall be posted inside the commercial cannabis business in a location readily-visible to the public.
(J) Business Owner, Manager, and Supervisor Background Check. Pursuant to California Penal Code Sections 11105(b)(11) and 13300(b)(11), which authorizes the city authorities to access state and local summary criminal history information for employment, licensing, or certification purposes; and authorizes access to federal level criminal history information by transmitting fingerprint images and related information to the Department of Justice to be transmitted to the Federal Bureau of Investigation, every person listed as an owner, manager, and supervisor must submit fingerprints and other information deemed necessary by the chief of police for a background check by the city of American Canyon police department. Pursuant to California Penal Code Sections 11105(b)(11) and 13300(b)(11), which requires that there be a requirement or exclusion from employment, licensing or certification based on specific criminal conduct on the part of the subject of the record. No person shall be issued a permit to operate a commercial cannabis business or a related work permit unless they have first cleared the background check, as determined by the chief of police, as required by this section. A fee for the cost of the background investigation, which shall be the actual cost to the city of American Canyon to conduct the background investigation as it deems necessary and appropriate, shall be paid at the time the application for a commercial cannabis business permit is submitted.
(K) Employee and Contract Employee Background Check. Pursuant to city council resolution, employee and contract employee background checks will be provided by the city of American Canyon police department or a background check service under contract to the city.
(L) Loitering. The owner and/or operator of a commercial cannabis business shall prohibit loitering by persons outside the facility both on the premises and within fifty feet of the premises.
(M) Permits and Other Approvals. Prior to the establishment of any commercial cannabis business or the operation of any such business, the person intending to establish a commercial cannabis business must first obtain all applicable planning, zoning, building, and other applicable permits from the relevant governmental agency which may be applicable to the zoning district in which such commercial cannabis business intends to establish and to operate.
5.10.330 Other operational requirements.
Prior to operating in the city and as a condition of issuance of a regulatory permit, the operator of each cannabis facility shall enter into an operational agreement with the city setting forth the terms and conditions under which the cannabis facility will operate that are in addition to the requirements of this chapter, including, but not limited to, public outreach and education, community service, payment of fees and other charges as mutually agreed, and such other terms and conditions that will protect and promote the public health, safety and welfare.
5.10.340 Operating requirements for non-store front retailer.
(A) Non-store front retailer license owners and operators are required to verify the age and the necessary documentation of each medical customer to ensure the customer is not under the age of eighteen years, and to verify that the potential customer has a valid doctor's recommendation. Doctor recommendations are not to be obtained or provided at the retail location.
(B) Operating hours of the non-store front retailer shall be limited to between the hours of six a.m. through ten p.m., seven days a week.
(C) The commercial non-store front retailer shall only sell cannabis or cannabis products to a natural person twenty-one years of age or older, or a natural person eighteen years of age or older who possesses a physician's recommendation for cannabis medical use only.
(D) The commercial cannabis non-store front retailer may only have a quantity of cannabis and cannabis products on-site that is reasonably anticipated to meet the weekly sales demand.
5.10.350 Non-store front retailer vehicle requirements.
Prior to commencing operations, a cannabis non-store front retailer shall provide the following information to the city as described in Section 19.37.040(A) of this code.
5.10.360 Permissible delivery locations and customers.
Non-store front businesses permitted to engage in delivery of cannabis and cannabis products are subject to the following requirements:
(A) A cannabis business must be authorized by the city of American Canyon to deliver cannabis goods to a residential address in the city of American Canyon and/or to other jurisdictions in which it is permitted to deliver cannabis goods.
(B) A licensed cannabis business shall not deliver cannabis goods to an address located on publicly owned land or any address on land or in a building leased by a public agency.
(C) A licensed cannabis business shall comply with all requirements of state and local law pertaining to the cannabis permit and all subsequent policies, procedures and regulations which may be amended by the city manager from time to time in order to enforce this chapter.
5.10.370 Retailer store front services shall not be permitted.
It is unlawful for any person, limited liability company, corporation, collective, cooperative or any other entity to manage or operate a store front facility in which customers are permitted on the premises for which it will sell, exchange, barter, transfer, and/or promote, any cannabis or cannabis products in the city for commercial purpose unless they have been issued a commercial cannabis permit pursuant to this chapter and authorized to conduct such activities.
5.10.380 Operating requirements for cultivation facilities.
(A) Outdoor Cultivation Prohibited. The cultivation of all cannabis shall occur indoors. All outdoor cultivation is prohibited.
(B) In no case, shall cannabis plants or any cannabis parts be visible from a public or private road, sidewalk, park or any common public viewing area.
(C) Pesticides and fertilizers shall be properly labeled and stored to avoid contamination through erosion, leakage or inadvertent damage from pests, rodents or other wildlife.
5.10.390 Operating requirements for testing labs.
(A) Testing labs shall be required to conduct all testing in a manner pursuant to Business and Professions Code Section 26100 and shall be subject to state and local law. Each testing lab shall be subject to additional regulations as determined from time to time as more regulations are developed under this chapter and any subsequent state of California legislation regarding the same.
(B) Testing labs shall conduct all testing in a manner consistent with general requirements for the competence of testing and calibrations activities, including sampling using verified methods.
(C) All cannabis testing laboratories performing testing shall obtain and maintain ISO/IEC 17025 accreditation as required by the Bureau of Cannabis Control.
(D) Testing labs shall destroy any harvest batch whose testing sample indicates noncompliance with health and safety standards required by the bureau unless remedial measures can bring the cannabis or cannabis products into compliance with quality standards as specified by law and implemented by the bureau.
(E) Each operator shall ensure that a testing laboratory employee takes the sample of cannabis or cannabis products from the distributor's premises for testing required by state law and that the testing laboratory employee transports the sample to the testing laboratory.
(F) Except as provided by state law, a testing laboratory shall not acquire or receive cannabis or cannabis products except from a licensee in accordance with state law, and shall not distribute, sell, or dispense cannabis, or cannabis products, from the licensed premises from which the cannabis or cannabis products were acquired or received. All transfer or transportation shall be performed pursuant to a specified chain of custody protocol.
(G) A testing laboratory may receive and test samples of cannabis or cannabis products from a qualified patient or primary caregiver only if the qualified patient or primary caregiver presents the qualified patient's valid physician's recommendation for cannabis for medicinal purpose. A testing lab shall not certify samples from a qualified patient or primary caregiver for resale or transfer to another party or licensee. All tests performed by a testing laboratory for a qualified patient or primary caregiver shall be recorded with the name of the qualified patient or primary caregiver and the amount of the cannabis or cannabis products received.
5.10.400 Cannabis manufacturing—Edibles and other cannabis products—Sale or distribution of edible and other cannabis products.
(A) Cannabis manufacturing facilities requiring a Type-6, Type-7, Type S, or any subsequent created manufacturing state license (using non-volatile and volatile solvents) as defined in MAUCRSA, may be permitted to operate within those zoning districts as defined in Title 19 of this code.
(B) Any compressed gases used in the manufacturing process shall not be stored on any property within the city of American Canyon in containers that exceeds the amount, which is approved by the American Canyon fire protection district and authorized by the regulatory permit. Each site or parcel subject to a commercial cannabis business permit shall be limited to a total number of tanks as authorized by the American Canyon fire protection district on the property at any time.
(C) Cannabis manufacturing facilities may use the hydrocarbons N-butane, isobutane, ethanol, propane, or heptane or other solvents or gases exhibiting low to minimal potential human-related toxicity approved by the community development department. These solvents must be of at least ninety-nine percent purity and any extraction process must use them in a professional grade closed loop extraction system designed to recover the solvents and work in an environment with proper ventilation, controlling all sources of ignition where a flammable atmosphere is or may be present.
(D) If an extraction process uses a professional grade closed loop CO2 gas extraction system, every vessel must be certified by the manufacturer for its safe use as referenced in Section 5.10.360. The CO2 must be of at least ninety-nine percent purity.
(E) Closed loop systems for compressed gas extraction systems must be commercially manufactured and bear a permanently affixed and visible serial number.
(F) Certification from an engineer licensed by the state of California must be provided to the community development department for a professional grade closed loop system used by any commercial cannabis manufacturing manufacturer to certify that the system was commercially manufactured, is safe for its intended use, and was built to codes of recognized and generally accepted good engineering practices, including, but not limited to:
(1) The American Society of Mechanical Engineers (ASME);
(2) American National Standards Institute (ANSI);
(3) Underwriters Laboratories (UL); or
(4) The American Society for Testing and Materials (ASTM).
(G) The certification document must contain the signature and stamp of the professional engineer and serial number of the certified extraction unit.
(H) Professional closed loop systems, other equipment used, the extraction operation, and facilities must be approved for their use by the building official and the American Canyon fire protection district and meet any required fire, safety, and building code requirements specified in the California Building Reference Codes.
(I) Cannabis manufacturing facilities may use heat, screens, presses, steam distillation, ice water, and other methods without employing solvents or gases to create keef, hashish, bubble hash, or infused dairy butter, or oils or fats derived from natural sources, and other extracts.
(J) Cannabis manufacturing facilities may use food grade glycerin, ethanol, and propylene glycol solvents to create or refine extracts. Ethanol should be removed from the extract in a manner to recapture the solvent and ensure that it is not vented into the atmosphere.
(K) Cannabis manufacturing facilities creating cannabis extracts must develop standard operating procedures, good manufacturing practices, and a training plan prior to producing extracts for the marketplace.
(L) Any person using solvents or gases in a closed looped system to create cannabis extracts must be fully trained on how to use the system, have direct access to applicable material safety data sheets, and handle and store the solvents and gases safely.
(M) Parts per million for one gram of finished extract cannot exceed state standards for any residual solvent or gas when quality assurance tested.
5.10.410 Promulgation of regulations, standards and other legal duties.
(A) In addition to any regulations adopted by the city council, the city manager is authorized to establish any additional rules, regulations and standards governing the issuance, denial or renewal of commercial cannabis business permits, the ongoing operation of commercial cannabis businesses and the city's oversight, or concerning any other subject determined to be necessary to carry out the purposes of this chapter.
(B) Regulations shall be published on the city's website.
(C) Regulations adopted by the city manager shall become effective upon date of publication. Commercial cannabis businesses shall be required to comply with all state and local laws and regulations, including, but not limited to, any rules, regulations or standards adopted by the city manager.
(D) Testing labs, distribution facilities and special events shall be subject to state law and shall be subject to additional regulations as determined from time to time as more regulations are developed under subsection A of this section and any subsequent state of California legislation regarding the same.
5.10.420 Community relations.
(A) Each commercial cannabis business shall provide the name, telephone number, and email address of a community relations contact to all businesses and residences located within one hundred feet of the commercial cannabis business.
(B) During the first year of operation pursuant to this chapter, the owner, manager, and community relations representative from each commercial cannabis business holding a permit issued pursuant to this chapter shall attend meetings with the city manager, and other interested parties as deemed appropriate by the city manager, to discuss costs, benefits, and other community issues arising as a result of implementation of this chapter. After the first year of operation, the owner, manager, and community relations representative from each such commercial cannabis business shall meet with the city manager when and as requested by the city manager.
(C) Commercial cannabis businesses to which a permit is issued pursuant to this chapter shall develop a city approved public outreach and educational program for youth organizations and educational institutions that outlines the risks of youth addiction to cannabis, and that identifies resources available to youth related to drugs and drug addiction.
5.10.430 Fees deemed debt to the city of American Canyon.
The amount of any fee, cost or charge imposed pursuant to this chapter shall be deemed a debt to the city of American Canyon that is recoverable via an authorized administrative process as set forth in the American Canyon Municipal Code, or in any court of competent jurisdiction.
5.10.440 Permit holder responsible for violations.
The person to whom a permit is issued pursuant to this chapter shall be responsible for all violations of the laws of the state of California or of the regulations and/or the ordinances of the city of American Canyon, whether committed by the permittee or any employee or agent of the permittee, which violations occur in or about the premises of the commercial cannabis business whether or not said violations occur within the permit holder's presence.
5.10.450 Inspection and enforcement.
The city manager, charged with enforcing the provisions of this chapter may enter the location of a commercial cannabis business at any time during the hours of operation and without notice to obtain samples of the cannabis to test for public safety purposes. Any samples obtained by the city of American Canyon shall be logged, recorded, and maintained in accordance with established procedures by the city of American Canyon city manager or these regulations.
5.10.460 Compliance with state regulation.
It is the stated intent of this chapter to regulate commercial cannabis activity in the city of American Canyon in compliance with all provisions MAUCRSA and any subsequent state legislation.
5.10.470 Violations declared a public nuisance.
Each and every violation of the provisions of this chapter is hereby deemed unlawful and a public nuisance.
5.10.480 Each violation a separate offense.
Each and every violation of this chapter shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by the city of American Canyon. Additionally, as a nuisance per se, any violation of this chapter shall be subject to injunctive relief, any permit issued pursuant to this chapter being deemed null and void, disgorgement and payment to the city for any monies unlawfully obtained, costs of abatement, costs of investigation, attorney fees, and any other relief or remedy available at law or in equity. The city of American Canyon may also pursue any and all remedies and actions available and applicable under state and local laws for any violations committed by the commercial cannabis business or persons related to, or associated with, the commercial cannabis activity. Additionally, when there is determined to be an imminent threat to public health, safety or welfare, the city manager, may take immediate action to temporarily suspend a commercial cannabis business permit issued by the city, pending a hearing before the city manager.
5.10.490 Criminal penalties.
Each and every violation of the provisions of this chapter may in the discretion of the district attorney or city attorney be prosecuted as a misdemeanor and upon conviction be subject to a fine not to exceed one thousand dollars or imprisonment in the County Jail for a period of not more than twelve months, or by both such fine and imprisonment. Each day a violation is committed or permitted to continue shall constitute a separate offense.
5.10.500 Remedies cumulative and not exclusive.
The remedies provided herein are not to be construed as exclusive remedies. The city is authorized to pursue any proceedings or remedies provided by law.
Chapter 5.12 CARDROOMS
5.12.010 Concurrent regulation with the state.
It is the stated intent of the ordinance codified in this chapter to regulate cardrooms and tables within the city, concurrently with the state of California, to the extent authorized by and as required by, Business and Professions Code Section 19800, (popularly referred to as the "Gambling Control Act" and, together with the regulations of the state of California Department of Justice Division of Gambling Control promulgated thereunder, hereinafter collectively referred to in this chapter as the "Act").
5.12.020 Cardroom permit required.
It is unlawful for the operator, or any person having charge, control or management of any establishment, social club, or place of business open to the public, or to which an admission fee is charged, to conduct, operate, or participate in any card game, or to permit or suffer upon or in such premises the conduct or operation of any card game regulated by the Act, or participation therein by others, unless such operator or other person having charge, control, or management of such establishment, club or place of business shall have first obtained from the state of California a cardroom permit to conduct such card game.
5.12.030 Cardroom permit—Original application—Renewal.
(A) An application for a cardroom permit, or for the renewal of a cardroom permit, shall submit an application to the chief of police of the city ("chief"), which application shall be under oath, and shall include, among other things, the true names and addresses of all persons financially interested in the business and the plan for patron security and safety required by Section 5.12.170. The term "persons financially interested" means and shall include all persons who share in the profits of the business, on the basis of gross or net revenue. The past criminal record, if any, of the applicant and of all persons financially interested in the business shall be shown on the application. The application shall also be accompanied by fingerprints and recent photographs of the applicant and of all persons financially interested in the business, and an amount equal to any fingerprint processing fee required by the city.
(B) An application for renewal of a cardroom permit need not be accompanied by fingerprints or a recent photo or such fee if the application for renewal contains no additional names to the original cardroom permit application.
(C) An application for renewal of a cardroom permit shall be completed and filed within thirty days prior to expiration of the existing permit. If an application for renewal is not filed, or the application fee is not paid within the thirty day time limit, the cardroom permit shall expire one year after the date of its issuance or last renewal.
(D) A cardroom permit may be issued only to citizens or legal residents of the United States.
5.12.040 Cardroom permit—Conditions of denial—Appeal.
(A) The chief shall deny an original or renewal of a cardroom permit application to any applicant who is disqualified for any of the following reasons:
(1) Failure of the applicant to clearly establish eligibility and qualification in accordance with this chapter;
(2) Failure of the applicant to provide the information, documentation and assurances required by this chapter or requested by the chief, or failure of the applicant to reveal any fact material to qualifications, or the supplying of information that is untrue or misleading as to a material fact pertaining to the qualification criteria;
(3) Conviction of the applicant of any felony, including a conviction by a federal court or a court in another state for a crime that would constitute a felony if committed in California;
(4) Conviction of the applicant of any misdemeanor involving dishonesty or moral turpitude within the ten-year period immediately preceding the submission of the application;
(5) Association of the applicant with criminal profiteering activity or organized crime, as defined by Penal Code Section 186.2;
(6) Contumacious defiance by the applicant of any legislative investigatory body, or other official investigatory body of any state or of the United States, when that body is engaged in the investigation of crimes relating to gambling, official corruption related to gambling activities, or criminal profiteering activity or organized crime, as defined by Penal Code Section 186.2;
(7) The applicant is less than twenty-one years of age.
(B) The action of the chief denying a cardroom permit on the basis of this section shall be subject to appeal to the city council. Notice of such appeal shall be filed with the city clerk within ten days after notice of denial of the permit. Upon failure to file notice of appeal within the ten day period, the action of the chief denying the permit shall be final and conclusive.
5.12.050 Cardroom permit—Fee.
Every person conducting, carrying on or managing a cardroom, or permitting the conduct or operation of any card game in premises open to the public, or to which an admission fee is charged, as provided in Section 5.12.020 of this chapter, whether separately or in conjunction with any other business, shall pay to the city the sum of five hundred dollars annually, payable in advance, plus an additional permit fee of two hundred dollars annually, payable in advance, for each table in such cardroom or cardrooms. The city council may change such fees by resolution adopted from time to time.
5.12.060 Cardroom permit—Display.
Cardroom permits shall be prominently displayed in the cardroom area.
5.12.070 Cardroom permit—Restrictions and nonassignability.
(A) No person shall be granted a permit to operate more than one cardroom.
(B) No cardroom permit shall be sold, transferred or assigned by the permittee or by operation of law. Any sale, transfer or assignment, or attempt to sell, transfer or assign the permit shall be deemed to constitute a voluntary surrender of the permit, which shall thereafter be deemed terminated and void. This section does not restrict the right of any cardroom owner to sell, transfer or assign ownership interest in the cardroom itself. Anytime a cardroom changes ownership, the new owner must apply and qualify for a cardroom permit as provided by this chapter.
(C) The city council may, by resolution, in the best interest of the public welfare, limit the number of cardroom permits issued within the city.
5.12.080 Cardroom work permit—Application and denial.
(A) Cardroom employees must obtain a cardroom work permit from the chief. For the purpose of this chapter, "cardroom employees" are defined to include dealers, overseers and others directly connected with the operation and supervision of card tables, and excludes waiters, waitresses, bartenders, culinary workers and others not connected with such operation and supervision. Applications for cardroom work permits shall be submitted under oath and contain the past criminal record, if any, of the applicant, and such information as may be deemed necessary by the chief to determine whether the applicant is a proper person to be issued a cardroom work permit. The application also shall be accompanied by fingerprints, a recent photograph of the applicant and an amount equal to any fingerprint processing fee required by the city.
(B) A cardroom work permit shall not be issued to any person who would be disqualified from holding a state gambling license for the reasons specified in subsections (a) through (g) of Section 19859 of the Act, or regarding whom the Division of Gambling Control of the state of California has filed an objection with the city.
(C) The chief may deny issuance of a cardroom work permit for any further cause deemed reasonable by the chief. The action of the chief denying a cardroom work permit on the basis of this section shall be subject to appeal to the city council. Notice of such appeal shall be filed with the city clerk within ten days after notice of denial of the permit. Upon failure to file notice of appeal within the ten day period, the action of the chief denying the permit shall be final and conclusive.
(D) Cardroom work permits shall be prominently displayed in the cardrooms when the holder of the permit is working.
(E) Each application for a cardroom work permit shall be accompanied by a fee of two hundred dollars. The fee shall not be returned in the event that the permit is refused, revoked or suspended, as provided in this chapter. The permit shall be valid for one year from the date of issue; however, it may be prorated quarterly. The date of expiration shall be prominently displayed on the face of the permit.
(F) The holder of a cardroom work permit shall not be restricted as to place of employment.
5.12.090 Permit revocation or suspension.
The chief may revoke or suspend, and take possession of any cardroom permit or cardroom work permit issued under this chapter, upon any violation of the provisions of this chapter. The action of the chief shall be subject to appeal to the city council. Notice of such appeal shall be filed with the city clerk within ten days after notice of revocation or suspension action. Upon failure to file notice of appeal within the ten day period, the revocation or suspension of the permit shall be final and conclusive.
5.12.100 Hours of operation.
Before any cardroom shall be allowed to operate, each cardroom and each owner, manager and operator of a cardroom, shall adopt a schedule of hours of operation, which such schedule shall first be approved by the police chief. Each cardroom shall conspicuously post schedules of its hours of operations at all entrances and exits of the premises in which the cardroom is operating in order to give law enforcement officials and patrons adequate notice of the hours during which the cardroom will be open for business. Cardrooms which comply with all requirements of this chapter shall be authorized to operate twenty-four hours each day.
5.12.110 Playing fees—Posting required.
Each establishment having a cardroom open to the public shall prominently post signs, in English and Spanish languages, stating the fees charged for playing cards in such cardrooms.
5.12.120 Number of card tables permitted in each cardroom.
The total number of card tables allowed in each establishment issued a cardroom permit shall not exceed sixteen.
5.12.130 Number of card tables permitted within the city.
The total number of card tables permitted within the city shall not exceed sixteen.
5.12.140 Wagering limits.
There shall be no wagering limits at cardrooms within the city.
Such rules for wagering limits shall be conspicuously posted at or near each card table within a cardroom in order to give patrons adequate notice of the applicable wagering limits.
5.12.150 Operation restrictions.
(A) No tables other than a table for which a permit has been issued shall be kept or maintained in the same room in which there is a kept or maintained or operated a card game or a card table permitted under the provisions of this chapter.
(B) No premises shall be licensed for a card game or card table without approval, both as to location and the number of tables for the location, by both the city building department and the subsidiary fire protection district of the city.
(C) A card game or card table permit does not authorize the permittee to engage in any other business, and in the event that the permittee conducts another business or businesses, the permittee must secure any additional city licenses or permits otherwise required for such other business or businesses.
5.12.160 Location of cardroom establishments.
(A) A cardroom permit is valid only for the location provided for in the permit.
(B) In the interest of promoting the public peace, safety and general welfare, as may be authorized by applicable law, any new cardrooms shall be prohibited in any of the following locations:
(1) On a parcel with any type of residential zoning;
(2) Within one thousand feet of the following areas:
(a) Public or private pre-school or K-12 school,
(b) A licensed hospital, medical clinic, alcohol or other drug abuse recovery or treatment center, or community care residential facility providing mental and/or social rehabilitation services,
(c) A public park or playground,
(d) A public library,
(e) A church;
(3) Licensed cardrooms existing within the city of American Canyon as of the passage date of the ordinance codified in this chapter are exempt from subsections (B) and (C) of this section.
(C) The footage distance shall be measured from the closest point on the exterior property lines of the cardroom establishment to the closest point on the exterior property lines of the other property.
5.12.170 Patron security and safety in and around a cardroom establishment.
(A) Each applicant for a cardroom permit, at the time of application, and each holder of a cardroom permit annually thereafter, at the time of permit renewal, shall present a plan for security and safety of patrons of the cardroom in and around the cardroom establishment. The plan shall set forth such provisions as are necessary to ensure the safety and security of patrons, including measures taken or instituted to avoid follow home robberies. The holder of a cardroom permit shall be liable for the safety and security of patrons to the fullest extent under the law. Any effort on the part of a cardroom permittee to limit such liability shall be clearly posted in such a manner as to give adequate notice to patrons. The plan shall include a detailed summary of all known incidents involving or affecting patron security and safety in and around the cardroom establishment for the preceding year.
(B) The chief may require, in his or her discretion, all cardroom permittees to implement reasonable security measures to insure the safety of patrons including, but not limited to, hiring private uniformed security guards. If security guards are required, the chief shall determine the number and hours of coverage.
(C) During all hours of operation, doors to the cardroom establishment shall be unlocked and accessible to the general public and open to police inspection. Cardrooms shall be located and so arranged that card tables and the players at the tables are plainly visible from the door opening of the cardroom when the door is opened. No wall, partition, screen or similar structure between the front door opening and any card table located in the cardroom shall be permitted if it interferes with such visibility. The requirement that all card tables and players at the tables are plainly visible from the door opening of the cardroom may be accomplished by a video surveillance system with storage capability that provides twenty-four hour surveillance of each table in a cardroom, subject to city or regulator inspection. The referenced video surveillance system must be approved by the city.
5.12.180 Minors prohibited.
No persons under the age of twenty-one shall be permitted in or about any cardroom establishment.
5.12.190 Loitering prohibited.
No cardroom owner, operator or employee shall permit any person to loiter within the cardroom while card games are in progress.
5.12.200 Persons under the influence of alcohol, narcotics or drugs prohibited.
No cardroom owner, operator or employee shall permit any person to enter or remain on the premises of a cardroom, or to play any card game while such person is under the influence of any intoxicating beverage, narcotic, or drug.
5.12.210 New cardrooms prohibited.
(A) The issuance of any new cardroom permits or the commencement or operation of any new cardrooms or card games is prohibited.
(B) The cardrooms presently operating within the city are specifically exempt from this prohibition as long as the required permits are obtained and annually renewed.
5.12.220 Violations and penalties.
Any person guilty of violating any of the provisions of this chapter, or performing any act declared by this chapter to be unlawful, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine and/or imprisonment, in accordance with the general penalty provision then in effect in the city.
5.12.230 Purpose and Intent.
This chapter, Sections 5.12.230 through 5.12.380 (hereinafter referred to as "Cardroom Tax Provisions"), are enacted solely to raise revenue for municipal purposes and are not intended for regulation.
5.12.240 Definitions.
The words and phrases used in the cardroom tax provisions shall have the meaning prescribed to them in this section unless they are specifically defined in these cardroom tax provisions or unless the context clearly requires to the contrary:
"Cardroom establishment" means and includes any building, structure, place or location wherein cardroom activities take place pursuant to this chapter of the American Canyon Municipal Code.
"Cardroom event" means any card games, cardroom activities or cardroom tournaments permitted by this chapter and/or the California Business and Professions Code Section 19800 et seq., and the State of California Department of Justice Division of Gambling Control.
"Gross receipts tax" or "tax" means a tax on a cardroom's gross revenues for each quarter, beginning January 1, 2013.
"Gross revenues" means the definition of "gross table gaming revenue" as reported to the California Gambling Control Commission and the California Department of Justice Bureau of Gaming Control.
"Permittee" means a person who has been issued a cardroom permit under this chapter.
5.12.250 Payment of tax.
(A) Effective January 1, 2013, each cardroom establishment shall pay to the city, on a quarterly basis, a gross receipts tax of two and one-half percent of its quarterly gross revenues.
(B) The gross receipts tax shall increase to three percent, effective upon the earlier of either of the following dates:
(1) March 27, 2017; or
(2) One year after the city authorizes cardroom operators in the city to operate sixteen tables.
(C) The tax imposed by the gross receipts tax provisions of this chapter is in addition to any other tax, license or permit fee that may be required of any person by the American Canyon Municipal Code or any other ordinance of the city.
(D) All taxes, interest and penalties received pursuant to the gross receipts tax provisions shall be deposited in the general fund.
5.12.255 Statement of revenues.
Before the thirtieth day following the end of each quarter, the licensee shall file with the city finance department, a statement, under oath, showing the true and correct amount of gross revenues for the preceding quarter. A signed declaration shall be attached to the statement included therein, which shall be in substantially the same form as: "I hereby declare under penalty of perjury that the foregoing is true and correct." Pursuant to Section 5.12.260 of this chapter, the city shall have the right to audit matters reported in the statement to
determine the accuracy of the figures contained therein.
5.12.260 Audit of reports.
(A) The books, records, statements and accounts of any permittee may be inspected and audited by the city.
(B) Such an inspection and audit may be performed by the director of finance, city auditor or a qualified accountant or city official who shall be selected by the director of finance.
(C) Any failure or refusal of any permittee to pay such sums by way of taxes when the same are due and payable in accordance with the gross receipts tax provisions of this chapter, or to permit such inspection of such books, records and accounts of such permittee shall be and constitute full and sufficient grounds for suspension or revocation of any cardroom permit issued to the permittee pursuant to Section 5.12.090.
5.12.265 Gross receipts tax exemption.
Provided that the permittee has entered into a development agreement pursuant to Government Code Section 65864 et seq., with the city, for any related expansion of the permittee's cardroom premises, or any increase in the number of cardroom tables allowed, or any intensification of use of the premises, the payment schedule of the development agreement shall apply and the city shall not impose the gross receipts tax.
5.12.270 Payment—Time limits.
(A) All taxes imposed by the gross receipts tax provisions of this chapter shall be due and payable within thirty days of the end of each quarter.
(B) In the case of a cardroom which is discontinued, dissolved or otherwise terminated before the expiration of a tax period, the due date for any taxes accrued and owing to the city under the gross receipts tax provisions of this chapter shall be the date of termination of the cardroom business.
5.12.280 Payments and communications made by mail.
(A) Whenever any payment, statement, report, request or other communication received by the director of finance is received after the time prescribed by the gross receipts tax provisions of this chapter for the receipt thereof, but is in an envelope bearing a postmark showing that it was mailed prior to the time prescribed in this chapter for the receipt thereof, the director of finance may regard such payment, statement, report, request or other communication as having been timely received.
(B) If the due day falls on Saturday, Sunday or a holiday, the due day shall be the next regular business day on which City Hall is open to the public.
5.12.290 When taxes deemed delinquent.
Unless otherwise specifically provided under other provisions of this chapter, all taxes required to be paid pursuant to the gross receipts tax provisions of this chapter shall be deemed delinquent if not paid on or before the due date specified in Section 5.12.270.
5.12.300 Notice not required by city.
The director of finance is not required to send a delinquency or other notice or bill to any permittee subject to the gross receipts tax provisions of this chapter, and failure to send such notice or bill shall not affect the validity of any tax, interest or penalty due under the provisions of this chapter.
5.12.310 Penalty and interest for delinquency.
In addition to any other penalties or fines, civil or criminal, any permittee who fails or refuses to pay any tax required to be paid pursuant to the gross receipts tax provisions of this chapter on or before the due date shall pay, in addition to the tax, penalties and interest as follows:
A penalty equal to ten percent of the amount of the unpaid tax in addition to the amount of the tax, plus interest of one and one-half percent per month or fraction thereof on the amount of tax, exclusive of penalties, on the unpaid tax calculated from the due date of the tax until the date of payment.
5.12.320 Rules and regulations—Apportionment.
For purposes of apportionment of the tax as may be required by law and for purposes of administration and enforcement of the gross receipts tax provisions of this chapter generally, the director of finance may from time to time promulgate administrative rules and regulations.
5.12.330 Tax deemed debt to city.
The amount of any tax, penalties and interest imposed by the gross receipts tax provisions of this chapter shall be deemed a debt to the city, and any permittee carrying on any business without having paid the tax under the gross receipts tax provisions of this chapter to the city shall be liable to an action in the name of the city and in any court of competent jurisdiction for the amount of the tax, and penalties and interest imposed on such business.
5.12.340 Deficiency determinations.
(A) If the director of finance is not satisfied that the amount of tax is correctly computed, the director may compute and determine the amount to be paid and make a deficiency determination upon the basis of the facts contained in the statement or upon the basis of any information in the director's possession or that may come into the director's possession.
(B) One or more deficiency determinations of the amount of tax due for period or periods may be made.
(C) When a permittee discontinues engaging in a cardroom business, a deficiency determination may be made at any time within three years thereafter as to any liability arising from engaging in such business whether or not a deficiency determination is issued prior to the date the tax would otherwise be due.
(D) Whenever a deficiency determination is made, a notice shall be given to the permittee concerned in the same manner as notices of assessment are given under Section 5.12.360.
5.12.350 Tax assessment—Nonpayment—Fraud.
(A) Under any of the following circumstances, the director of finance may make and give notice of an assessment of the amount of tax owed by a permittee under the gross receipts tax provisions of this chapter:
(1) If the permittee has not paid any tax due under the gross receipts tax provisions of this chapter;
(2) If the permittee has not, after demand by the director of finance, paid any additional amount of tax due under the gross receipts tax provisions of this chapter;
(3) If the director of finance determines that the nonpayment of any tax due under the gross receipts tax provisions of this chapter is due to fraud, a penalty of twenty-five percent of the amount of the tax shall be added thereto from the date the tax is due in addition to penalties and interest otherwise stated in the gross receipts tax provisions of this chapter.
(B) The notice of assessment shall separately set forth the amount of any tax known or estimated by the director of finance to be due, after full consideration of all information within his or her knowledge concerning the cardroom business and activities of the permittee assessed and shall include the amount of any penalties or interest accrued on each amount to the date of the notice of assessment.
5.12.360 Tax assessment—Notice requirements.
The notice of assessment shall be served upon the permittee either by handing it to the permittee personally, or by a deposit of the notice in the United States mail, postage prepaid thereon, addressed to the permittee at the address of the location of the business appearing on the face of the permit issued under this chapter to the permittee or to such other address as he or she shall register with the director of finance for the purpose of receiving notices provided under this chapter. For the purposes of this section, a service by mail is complete at the time of deposit in the United States mail.
5.12.370 Tax assessment—Hearing.
(A) Within ten days after the date of service, the permittee may apply in writing to the director of finance for a hearing on the assessment.
(B) If application for a hearing before the director of finance is not made within the time herein prescribed, the tax assessed by the director of finance shall become final and conclusive.
(C) Within thirty days of the receipt of any such application for hearing, the director of finance shall cause the matter to be set for hearing before him or her not later than thirty days after the date of application, unless a later date is agreed to by the director of finance and the permittee requesting the hearing.
(D) Notice of such hearing shall be given by the director of finance to the permittee requesting such hearing not later than five days prior to such hearing. At such hearing said permittee may appear and offer evidence why the assessment as made by the director of finance should not be confirmed and fixed as a tax.
(E) After such hearing the director of finance shall determine and reassess the proper tax to be charged and shall give written notice thereof to the permittee in the manner prescribed in Section 5.12.350 for giving notice of assessment.
5.12.380 Conviction for chapter violation—Taxes not waived.
(A) The conviction and punishment of any permittee for failure to pay the required tax shall not excuse or exempt such permittee from any civil action for the tax debt unpaid at the time of such conviction.
(B) No civil action shall prevent a criminal prosecution for any violation of the provisions of this chapter or of any state law requiring the payment of all taxes.
Chapter 5.16 VEHICLES FOR HIRE/TAXI SERVICES
5.16.010 Definitions.
As used in this chapter:
"Driver" means every person in charge or control of any vehicle for hire as the driver thereof.
"Owner" means every person owning or controlling any vehicle for hire.
"Taximeter" means an instrument or device attached to a public passenger vehicle for hire by means of which instrument or device the charge authorized for hire of such vehicle is mechanically calculated either on a basis of distance traveled or for waiting time, or a combination thereof, which charge shall be indicated upon such taximeter by means of figures in dollars and cents; and every taximeter shall be installed in such a manner as to permit the passenger to see the amount of the fare as the same is registered.
"Vehicle for hire" means a motor vehicle operated for hire in the transportation of a person or persons over the public streets of the city at a rate per mile or for waiting time, or a combination thereof, operating not over a defined route but as to route and destination in accordance with and under the direction of the person or persons hiring such vehicle, irrespective of whether such operation extends beyond the corporate limits of the city; such definition, however, shall not include ambulances.
5.16.020 Permit required.
It is unlawful for any owner or driver to operate and for any owner to permit the operation of any vehicle for hire in the city unless both the owner and driver of such vehicle shall have obtained a written permit to do so as herein provided and have paid any license fee required by Section 5.04.410 of this code.
5.16.030 Permit—Application required—Contents.
Application for a vehicle for hire permit shall be made to the city and shall contain the following information with respect to the applicant:
(A) A statement of whether applicant is the owner or driver, or both of a vehicle(s) for hire;
(B) Applicant's name, address, age and whether he or she is a citizen;
(C) Applicant's past experience in operating motor vehicles and names and addresses of his or her employers during the preceding three years;
(D) The number and type of existing driving licenses issued to applicant by the state Department of Motor Vehicles;
(E) Whether or not a license, issued up to applicant by such department, or any other governmental agency, has ever been revoked;
(F) A list of all crimes of which applicant has been convicted including misdemeanor traffic violations;
(G) If applicant is a driver, the name and address of the owner or the owners by whom he or she will be employed; and if the applicant is an owner, then the name and address of all drives whom he or she employs within the city;
(H) Number, kind, type and condition of vehicles to be operated;
(I) Location of off-street parking stands;
(J) The financial responsibility of the applicant and likelihood of the proposed service being permanent, responsible and satisfactory;
(K) Any additional information which may be required.
5.16.040 Application under oath—False statements.
It is unlawful for an owner or driver to make any false or misleading statement in such application.
5.16.050 Application fee.
Applicable application and fingerprinting fees shall be paid by each applicant at the time of submitting an application for a permit under this chapter.
5.16.060 Business license application fees and taxes.
Applicable business license application fees and business license taxes shall be paid by owner applicants at the time of submitting an application for a permit under this chapter.
5.16.070 Fingerprinting and photographing applicant.
All applicants shall be fingerprinted and shall furnish with their application two recent photographs, size one and one-half inches by one and one-half inches, one to be filed with the application and one to be securely attached to the permit if applicant qualifies for the issuance thereof.
5.16.080 Consideration, action on application/vehicle for hire by police chief.
(A) The police chief shall set a hearing for the vehicle for hire "owner" application, and shall give five days written notice of the hearing to all existing licensed vehicle for hire businesses in this city. The police chief shall hear such application and all interested parties, and, if in his or her determination, granting the permit to such applicant would be for the public convenience and in the best interests of this city and its inhabitants, then the police chief may grant such permit. Upon the granting of such permit applicant shall pay all license fees required by the city, and conform to all the regulations of this code and laws relative to the operations of vehicles for hire in this city. If a permit is granted the applicant, the police chief shall issue a nontransferable permit upon such form as he or she may prescribe. The permit will also enable the "owner" to be a "driver" of such vehicles.
(B) The police chief shall consider each vehicle for hire "driver" application. If the police chief finds that there are no grounds to deny such application, the police chief shall issue a permit to drive on such form as he or she may prescribe.
5.16.090 Grounds for permit denial.
A permit may be denied any "driver" applicant or "owner" applicant on the following grounds:
(A) If the applicant is under the age of twenty-one years;
(B) If the applicant has been convicted of a felony;
(C) If the applicant has been convicted in a court of competent jurisdiction of an offense involving lewd conduct; or an offense involving the use of force and violence upon the person of another, or a crime requiring regulation under Section 290 of the state Penal Code, or of any violation of Sections 311 through 311.7, 314, 315, 316, 318 or 647(a), (b) or (d) of the state Penal Code;
(D) If the applicant has been convicted of either driving a vehicle upon the highway while under the influence of intoxicating liquors or narcotic drugs, or reckless driving, or is otherwise unfit to operate a vehicle for hire, either as an owner or as a driver;
(E) If the applicant has knowingly and with intent to deceive made any false, misleading or fraudulent statement of facts in the permit application or in any other document required by the city in conjunction therewith;
(F) If the owner applicant is unable to prove that they are covered by an appropriate and required insurance policy;
(G) Applicant's character and reputation are such as to class him/her in the sound discretion of the police chief as morally unfit to operate a vehicle for hire, as an owner or a driver;
(H) If the required findings cannot be made;
(I) For any other reason which the police chief, in the exercise of sound discretion, considers sufficient grounds for denial of a permit.
5.16.100 Appeal to council.
(A) Any interested person may appeal the decision of the police chief under this chapter to the council. Such appeal shall be taken by filing with the city clerk a written statement of the grounds for appeal no later than fourteen days after notice of the decision of permit denial, suspension, alteration, or revocation has been given.
(B) The city clerk shall set the appeal for hearing before the council and shall give five days written notice of the hearing to the applicant. In the event that the appeal is relative to an "owner" application, notice shall also be given to all existing licensed vehicle for hire businesses in the city. The council shall hear all interested parties and, if in its determination, public convenience requires the granting of the permit and that the granting of the permit to the applicant would be in the best interests of this city and its inhabitants, the council shall grant such permit. The council may deny a permit to any applicant on the grounds set forth in Section 5.16.090 of this chapter.
5.16.110 Permit duration.
During the month of January each year, drivers shall submit a current California Department of Motor Vehicles driving record report for review. A permit issued under this chapter shall continue in effect until suspended or revoked.
5.16.120 Driver to carry permit.
When a driver has obtained a permit, the driver must carry it upon his or her person at all times while he or she is driving a vehicle for hire in the city.
5.16.130 Permit suspension, alteration, revocation.
The police chief may at any time after a hearing, suspend, alter, amend or revoke any permit or license upon any of the grounds on which he or she might have denied a permit in the first instance.
5.16.140 Notice of changes in conditions.
If the holder of a permit is an owner, he or she shall notify the police chief in writing of all changes in the personnel of his or her drivers; and if such holder is a driver, he or she shall notify the police chief in writing, of any changes of the owner for whom he or she is driving. Failure to comply with this requirement within two days of such change shall constitute an additional ground for revocation of a permit.
5.16.150 Financial responsibility.
(A) Every owner of a vehicle used in the transportation of passengers for hire, including vehicles for hire, shall maintain a public carrier liability insurance policy issued by an insurance company authorized/admitted to do business in California with minimum limits of one million dollars single limit for bodily injury and property damage naming the city of American Canyon as an additional insured. Every such policy of insurance shall continue to the full amount thereof, notwithstanding any recovery thereon, and the liability of the insurer shall not be affected by the insolvency or bankruptcy of the insured.
(B) The insurance policy required hereunder shall extend for the period to be covered by the license applied for and the insurer shall be obliged to give not less than thirty days written notice, to the finance department and to the assured, before any cancellation or termination thereof earlier than its expiration date. The expiration, cancellation or other termination of any such policy shall automatically revoke and terminate the vehicle for hire permit covered by such policy, unless another insurance policy complying with the provisions of this section is provided and in effect at the time of such expiration, cancellation or termination.
5.16.160 Taximeter required for certain rentals.
Every vehicle for hire with a rate based on mileage and time of less than a one-hour increment shall be equipped with a taximeter.
Chapter 5.20 CABLE SYSTEMS AND OPEN VIDEO SYSTEMS
Article I General
5.20.010 Purpose.
The purpose of this chapter is to:
Establish a local policy concerning cable systems, open video systems, and private communication systems that use the public rights-of-way;
Promote the availability of diverse, multimedia information resources to the community; enhance educational opportunities throughout the community and build a stronger community;
Encourage the provision of advanced and competitive cable or open video system services on the widest possible basis to the businesses, institutions and residents of the city;
Encourage economic development while preserving aesthetic and other community values and prevent proliferation of above-ground facilities; and
Encourage universal access to video programming services for all residents and businesses.
5.20.020 Definitions.
For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given in this chapter. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined in this chapter shall have the same meaning as in Title VI of the Communications Act of 1934, as amended, 47 U.S.C. § 521 et seq., and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to in this chapter are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.
"Access," "PEG access," or "PEG use" refers to the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the city of American Canyon and its designated access providers, to acquire, create, and distribute programming not under a franchisee's editorial control, including, but not limited to:
1. "Public access" or "public use" means access where organizations, groups, or individual members of the general public, on a nondiscriminatory basis, are the primary or designated programmers or users having editorial control over their communications;
2. "Education access" or "education use" means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications;
3. "Government access" or "government use" means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.
"Affiliate" means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.
"Basic service" means any service tier regularly provided to all subscribers which includes the retransmission of local television broadcast signals.
"Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.
"Cable communications system" refers to open video systems (OVS) and cable systems.
"Cable service" means:
1. The one-way transmission to subscribers of (i) video programming, or (ii) other programming service; and
2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
"Cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves subscribers without using, or connecting to a facility that uses, any public right-of-way within the city of American Canyon; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) any facilities of any electric utility used solely for operating its electric utility systems; or (E) an OVS that is certified by the FCC. Any reference to a cable system includes the cable system as a whole, or any part thereof, including all facilities, pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.
"Channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system or OV S and which is capable of delivering a television signal whether in an analog or digital format. The definition does not restrict the use of any channel to the transmission of analog television signals or one-way transmission.
"City" means the city of American Canyon in its present incorporated form and all departments, divisions, and agencies thereof, or any later reorganized, consolidated, enlarged or reincorporated form.
"City manager" means the city manager or the city manager's designee.
"Construction, operation or repair" and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready and excavation.
"Downstream channel" means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.
"FCC" means the federal communications commission.
"Franchise" refers to an authorization granted by the city to the operator of a cable communications system giving the operator the nonexclusive right to occupy the space, or use facilities upon, across, beneath, or over public rights-of-way in the city, to provide specified services within a franchise area.
"Franchise area" means the area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.
"Franchise fee" means:
1. In consideration of the grant and exercise of a franchise to construct, install, operate, or provide services using facilities in the public rights-of-way, a grantee shall pay to the city a franchise fee expressed as a percentage of gross revenues. The franchise shall specify the fee to be paid, and the gross revenues to be included in the fee calculation. If a franchise granted pursuant to this chapter specifies a franchise fee established as the result of limiting applicable law, the city shall have the option to renegotiate the amount of the franchise fee upon a change in applicable law. Nothing in this chapter requires a person to pay amounts in excess of any limits that may be established by state or federal law;
2. UVPP Fees. A UVPP that provides services using a cable system for which charges are assessed to subscribers, but are not received by the franchisee, shall pay a fee in lieu of a franchise fee on such service pursuant to the franchise fee calculation contained in the cable system franchise.
"Franchisee or grantee" refers to a person holding a cable communications system franchise granted by the city.
"Gross revenues" means all cash, credits, property, or other consideration of any kind or nature received directly or indirectly by a grantee or its affiliates, from any source whatsoever arising from, attributable to, or in any way derived from a grantee's operation of a cable system within the franchise area. Gross revenues include, but are not limited to, fees charged to subscribers for basic service; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, reconnection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable system; revenues from home shopping channel; sales of programming guides; and such other revenue sources as may now exist or hereafter develop. The definition shall be interpreted in a manner which manner that permits the city to collect the maximum franchise fee permitted by law, irrespective of the source of revenue. Gross revenues, however, shall not include any bad debt (defined as unpaid subscriber or advertiser accounts), any taxes on services furnished to a grantee and imposed directly upon any subscriber or user by the state, city, or other governmental unit and collected by a grantee on behalf of the governmental unit. The amount paid as a franchise fee shall not be deducted from gross revenues unless required to be deducted under federal law.
"Operator" when used with reference to a system, refers to a person (a) who, directly or through one or more affiliates, provides service over a cable communications system and directly or through one or more affiliates owns a significant interest in such facility; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility.
"OVS" means an open video system. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.
"Person" means and includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.
"Public property" means any property that is owned or under the control of the city that is not a public right-of-way, including, for purposes of this chapter, but not limited to, buildings, parks, poles, structures in the public rights-of-way such as utility poles and light poles, or similar facilities or property owned by or leased to the city.
"Public rights-of-way" means the surface of and the space above and below any street, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, or right-of-way or easement primarily dedicated to travel, whether on property owned by the city, containing easements benefiting the city, or on private roads or streets on private property, now or hereafter existing within the city which may be properly used for the purpose of installing, maintaining, and operating a cable communications system; and any other property that a franchisee is entitled by state or federal law to use by virtue of the grant of a franchise.
"Revocation" means the city's affirmative act of terminating a franchise.
"School" means any accredited primary school, secondary school, college and university.
"Subscriber" means the city or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system with franchisee's express permission, whether or not a fee is paid for such service.
"Termination" means the conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment or revocation.
"Transfer" means any transaction in which: (1) all or a portion of any facilities or any rights to use or operate facilities located in the public rights-of-way are sold, conveyed, transferred, assigned, encumbered (except as provided in Section 5.20.120(B)) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise; or (2) there is any change, acquisition, or transfer in the identity of the person in control of the grantee, or any person that controls grantee, including, without limitation, forced or voluntary sale, merger, consolidation, or receivership; or (3) the rights or obligations under the franchise are sold, conveyed, transferred, assigned, encumbered (except as set forth in this chapter) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise. It will be presumed, for purposes of clause (2) above, that any transfer or cumulative transfer of a voting interest by a person or group of persons acting in concert of ten percent or more of grantee, or person that controls grantee, or any change in the managing general partners of a grantee is a change of control. "Transfer" does not include: (1) a lease to a UVPP pursuant to 47 U.S.C. § 532 or 573; (2) the transmission of a commodity or electronic signal using facilities on a common carrier basis; or (3) a lease or other right to use facilities mandated pursuant to 47 U.S.C. § 224. "Transferring" and "transferee" shall have correlative meanings.
"Upstream channel" means a channel designed and activated to carry transmissions from a point on the cable communications system, other than the headend, to the headend or another point on the cable communications system.
"User" means a person or the city utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.
5.20.030 Franchise required.
No person may construct or operate a cable communications system in the city without first obtaining a grant of a franchise from the city.
5.20.040 Exceptions to franchise requirement.
The following persons or entities shall not be required to obtain a franchise under this title:
A UVPP (unaffiliated video program provider) that is only delivering cable service or other communications service (as that term is used in 47 U.S.C. § 542(h)) to subscribers.
5.20.050 Failure to obtain a franchise.
A person's failure to obtain a franchise as required by this chapter may, in the city's discretion, result in:
(A) Forfeiture, by operation of law, of the person's cable communication system located in the public rights-of-way that are not authorized by an existing franchise; and/or
(B) A requirement that the cable communication system be removed, and that penalties and damages be paid.
5.20.060 Existing franchises.
Franchises existing as of the effective date of this chapter shall, in addition to all the obligations and duties prescribed by the terms of their existing franchises, be subject to the substantive and procedural requirements in this chapter, except as prohibited by applicable law and to the extent such requirements conflict with a specific provision of the pre-existing franchise. Nothing in this chapter is intended to invalidate a lawful, existing franchise or to waive any obligations imposed by such a franchise.
5.20.070 Form of franchise.
A franchise shall be issued in the form of written agreement, approved by resolution of the city council, and must be accepted by the franchisee to become effective.
5.20.080 Filing an application.
A person seeking to (1) obtain a franchise; (2) transfer a franchise; (3) extend the term of an existing franchise; (4) renew a franchise; or (5) modify an existing franchise, shall submit a signed original of its application and six copies to the city clerk. The city clerk shall make an application available for public inspection. The application must conform to all of the requirements of this chapter. Requests for other types of franchise modifications may be processed by the city without an application, and submitted for approval. However, nothing in this chapter shall prevent the city from requiring an application in the event the city determines, based on the nature of the requested modification, that the public interest would best be served by the submission of an application pursuant to this chapter.
5.20.090 Application fee.
(A) Reasonable Costs. An applicant shall pay all reasonable costs incurred by the city related to the processing of any application. Processing costs shall include, but not be limited to, the costs of services rendered by any city employee, agent or representative, including consultants and attorneys.
(B) The initial deposit of the application fee for the consideration of an application for issuance, renewal, transfer, or modification of a franchise shall be in the amount of five thousand dollars, which deposit shall be submitted with the application. The city may, as costs are incurred, draw upon the deposit to recover its processing costs, including, but not limited to, the reasonable cost of outside consultants retained by the city related to the city's consideration and processing of a franchise. The city manager, at any time, may require the applicant to deposit additional sums if it appears that the initial deposit or subsequent deposits will be exhausted prior to the final action by the city relating to the consideration by the city of an application for issuance, renewal, transfer, or modification of a franchise. The applicant will not be entitled to further consideration by the city of its requested action until such time as the additional deposit required by the city manager has been deposited with the city. In the event the amount of the deposit of an applicant is in excess of the amount of the processing costs of the city related to the action requested, then the applicant shall be entitled to a return of any such excess amount. In addition, an applicant that is awarded a franchise shall pay the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise. Such payment shall be made to the finance director of the city within thirty days after the city furnishes the franchisee with a statement of such expenses.
5.20.100 Nature of franchise.
(A) Scope. A franchise granted pursuant to this chapter shall authorize and permit a franchisee to construct, operate, maintain and repair a cable system, or an OVS (as applicable) to provide cable service in the city, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain facilities appurtenant to such system in, on, over, under, upon, across, and along the public rights-of-way, and along such other public property that the city may authorize a franchisee to use.
(B) Nothing Passes by Implication. A franchise shall not convey rights other than as specified in this chapter, or in a franchise agreement; no rights shall pass by implication.
(C) Franchise Not in Lieu of Other Authorizations. A franchise shall not include, or be a substitute for:
(1) Compliance with requirements for the privilege of transacting and carrying on a business within the city, including, but not limited to, complying with the conditions the city may establish before constructing facilities for, or providing, noncable services;
(2) Any permit, agreement or authorization of general applicability required in connection with operations on or in public rights-of-way or public property, including by way of example and not limitation, encroachment permits for street construction;
(3) Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the franchise.
(D) Franchisee Must Comply with Other Laws. A franchise does not relieve a franchisee of its duty to comply with all the city ordinances and regulations of general applicability, and every franchisee must comply with the same. Likewise, the rights granted under a franchise are subject to the exercise of police and other powers the city now has or may later obtain, including but not limited to the power of eminent domain.
(E) Franchise Not a Grant of Property Rights. A franchise does not convey title, equitable or legal, in the public rights-of-way. Rights granted may not be subdivided or subleased.
(F) Possessory Interest of Public Property. A franchise granted pursuant to this chapter shall notify the franchisee of potential tax liability for property taxes pursuant to Cal. Rev. and Tax Code § 107.6.
(G) Franchise Nonexclusive. No franchise shall be exclusive, or prevent the city from issuing other franchises or authorizations, or prevent the city from itself constructing, operating, or repairing its own cable communications system with a franchise.
(H) Franchise Term. Every franchise shall be for a term of years, which term shall be specified in the franchise.
(I) Costs Borne by Franchisee. Unless otherwise specifically stated in a franchise, or required by law, all acts which a franchisee is required to perform under the franchise or applicable law must be performed at the franchisee's expense.
(J) Failures to Perform. If a cable communications system operator fails to perform work that it is required to perform within the time provided for performance, the city may perform the work and bill the operator therefor. The operator shall pay the amounts billed within thirty days. Nothing in this section shall preclude the city from exercising any other remedies available at law or in equity if the cable communications system operator fails to perform work that it is required to perform within the time provided for performance.
5.20.110 Administration of ordinance; adoption of regulations.
(A) Adoption of Regulations. The city may from time to time adopt regulations to implement the provisions of this chapter. This chapter, and any regulations adopted pursuant to the ordinance codified in this chapter, are not contracts with any franchisee, and may be amended at any time. In the event of any conflict between the terms and provisions of a franchise or franchises and this chapter,
the terms and provisions of this chapter shall prevail.
(B) Delegation. The city manager or his or her designees are authorized to administer the provisions of this chapter and any franchise issued pursuant thereto, and to provide any notices (including noncompliance notices) and to take any action on the city's behalf that may be required hereunder or under applicable law.
(C) No Waiver. The failure of the city, upon one or more occasions, to exercise a right or to require compliance or performance under a franchise or any other applicable law shall not be deemed to constitute a waiver of such right or a waiver of compliance or performance, unless such right has been specifically waived in writing.
(D) Administration of Public, Educational and Government Access. The city may designate one or more entities, including itself, to control and manage the use of public, educational and governmental access channels, facilities and equipment.
5.20.120 Transfers.
(A) Prior Approval Required. Every franchise shall be deemed to be held in trust, and to be personal to the franchisee. Any transfer that is made without the prior approval of the city shall be deemed invalid. A transfer is defined in Section 5.20.020 ("Upstream Channel").
(B) Exception for Mortgages. Notwithstanding any other provision of this chapter, pledges in trust, mortgages, or encumbrances against the facilities or any portion thereof of a cable communications system operator given to a bona fide institutional lender in connection with a loan or other financing required to secure the construction, operation, or repair of the facilities ("loan") may be made without application and without the city's prior consent. However, a loan shall require the city's prior consent unless it does each of the following: (1) requires the cable communication system operator or any successor to comply with the franchise or applicable law; or (2) requires the bona fide institutional lender to require the entity operating the cable system on its behalf to comply with each of the terms of the franchise; or (3) prohibits a third party to succeed to the interest of the operator, or to own or control the system, without the prior consent of the city. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the city under any franchise, this chapter or other applicable law.
5.20.130 General conditions upon construction, operation and repair.
(A) Franchisee Must Follow Local Rules. The construction, operation, and repair of cable communications systems shall be performed in compliance with all laws, ordinances, departmental rules, regulations, and practices of general applicability affecting such system. By way of example, and not limitation, this includes zoning and safety codes, construction standards, regulations for providing notice to persons that may be affected by system construction, and directives governing the time, place and manner in which facilities may be installed in the public rights-of-way. Persons engaged in the construction, operation, or repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.
(B) No Permit Without Franchise. A franchise is required before a permit may be issued for work associated with the construction of a cable communications system. Any permit issued for such work to a person that does not hold a franchise shall vest no rights in the permittee; the permit may be revoked at will, and the permittee shall remove all facilities installed under the permit upon the city's demand.
(C) Permits Must Be Obtained. Construction, operation, or repair of a cable communications system shall not commence until all required permits have been obtained from the proper city officials and all required fees have been paid. All work performed will be performed in strict accordance with the conditions of the permit. Upon order of the city, any work and/or construction undertaken that is not completed in compliance with the city's requirements, or which is installed without obtaining necessary permits and approvals shall be removed or worked halted until such permits are obtained.
(D) No Interference. Interference with the use of the public rights-of-way by others, including others that may be installing cable communications systems, must be minimized. The city may require a person using the public rights-of-way to cooperate with others through joint trenching and other arrangements to minimize adverse impacts on the public rights-of-way.
(E) Plans for and Publicizing Work. Work shall be publicized as the city may direct from time to time. The publication of work may be used to notify the public and operators of other communications systems, of the impending work, in order to minimize inconvenience and disruption to the public. The city shall approve or disapprove any work or work plan submitted.
(1) Each cable communications system operator shall provide the city a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.
(2) The city may from time to time, when the city receives an application for a permit to use a particular route, or upon the city's own initiative, designate by published order a route or proposed route for installation of communications facilities and may (a) require all persons who wish to emplace underground facilities along that route or any part thereof to install them during a specified period and (b) otherwise prohibit emplacement of such facilities along the route or any part thereof for twenty-four months or after such other, longer period as is necessary to protect the public interest.
(F) Existing Poles To Be Used. To the extent possible, operators of cable communications systems shall use existing poles and conduit. Additional poles may not be installed in the right-of-way without the permission of the city, nor may pole capacity be increased by vertical or horizontal extenders.
(1) To minimize disruption of public passage or infrastructure, to forestall or relieve exhaustion of public rights-of-way capacity, or to protect environmentally sensitive areas, the city may require as a condition of issuing any public rights-of-way permit for erection of new poles or construction of underground conduit, the installation of which requires excavation of or along any traveled way, that the franchisee, licensee, or holder of the rights-of-way permit provide pole space or empty conduits in excess of its own present and reasonably foreseeable requirements for the purpose of accommodating the city and/or other franchisees.
(G) Undergrounding.
(1) Whenever all existing utilities are located underground in an area in the city, every cable communications system operator in the same area must locate its cable communications system underground except where the city agrees to permit the cable communication system operator to do otherwise.
(2) Whenever the owner of a pole locates or relocates underground within an area of the city, every cable communications system operator in the same area shall concurrently relocate its facilities underground.
(3) The city manager may, for good cause shown, exempt a particular system or facility or group of facilities from the obligation to locate or relocate facilities underground, where relocation is impracticable, where ordinary engineering practices make undergrounding impractical, or where the city and the subscriber's interest can be protected in another manner. Nothing in this subsection prevents the city from ordering communications facilities to be located or relocated underground under other provisions of the city code.
(H) Prompt Repairs. Any and all public rights-of-way, other public property, or private property that is disturbed or damaged during the construction, operation, maintenance or repair of a cable communications system shall be promptly repaired by the operator. Public property and public rights-of-way must be restored to the satisfaction of the city and to a condition as good or better than before the disturbance or damage occurred. No tree trimming shall be performed without the permission of the city and other affected authorities, and any tree trimming must be performed in strict accordance with the city code.
(I) Movement of Facilities for Government.
(1) A cable communications system operator shall, by a time specified by the city, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the city by reason of traffic conditions; public safety; public rights-of-way construction and repair (including regrading, resurfacing or widening); public right-of-way vacation; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government owned system or utility, public work, public facility, or improvement; or for any other purpose where the work involved would be aided by the removal or relocation of the cable communications system. Collectively, such matters are referred to below as the "public work."
(2) Except in the case of emergency, the city shall provide written notice describing where the public work is to be performed at least one week prior to the deadline by which a cable communications system operator must protect, support, temporarily disconnect, relocate or remove its facilities. Such action on the part of the franchisee shall be undertaken at no cost to the city. Provided that, in an emergency, or where a cable communications system creates or is contributing to an imminent danger to health, safety, or property, the city may protect, support, temporarily disconnect, remove, or relocate any or all parts of the cable communications system without further notice, and charge the cable communications system operator for costs reasonably incurred.
(J) Movement for Others.
(1) To accommodate the construction, operation, or repair of the facilities of another person authorized to use the public rights-of-way or public property, a franchisee shall, by a time specified by such person, protect, support, temporarily disconnect, temporarily relocate or remove its facilities. The franchisee must be given written notice describing where the construction, operation or repair is to be performed at least fifteen days prior to the time by which its work must be completed. The costs to accommodate the construction, operation, or repair of the facilities of another person as provided in this chapter shall be the responsibility of the person requesting such accommodation.
(2) A cable communications system operator shall, on the request of any person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires by a time specified to permit the moving of buildings or other objects. A cable communications system operator shall be given not less than seven days advance notice to arrange for such temporary wire changes. The expense of such temporary removal, relaying, relocation, or raising or lowering of wires shall be paid by the person requesting the same.
(K) Abandonment in Place.
(1) A cable communications system operator may abandon any property in place in the public rights-of-way upon written notice to the city. However, if, within ninety days of the receipt of written notice of abandonment, the city determines, that the safety, appearance, functioning or use of the public rights-of-way and facilities in the public rights-of-way will be adversely affected, the property must be removed by a date specified by the city.
(2) A cable communications system operator that abandons its property must, upon request, transfer ownership of the properties to the city at no cost, and execute necessary quitclaim deeds and indemnify the city against future costs associated with mitigating or eliminating any environmental hazards associated with the abandoned property.
(L) System Subject to Inspection. Every cable communications system shall be subject to inspection and testing by the city. Each operator must respond to requests for information regarding its system and plans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the plant is being constructed, operated or repaired.
(M) Underground Services Alert. Each operator of a cable communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (underground services alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall identify the location of its cable communication system for the city at no charge.
(N) Plan for Construction. Every franchise shall specify for the city a construction schedule that will apply to any required construction, upgrade, or rebuild of the cable communications system. The schedule shall provide for the prompt completion of the project, and shall show its timetable for construction of each phase of the project, with benchmarks for deliverables and the areas of the city that will be affected. The city shall have the right to impose penalties on the operator for a failure to meet the accepted timetable and benchmarks.
(O) Use of Facilities by the City. The city shall have the right to install and maintain, free of charge, upon any poles or in any conduit owned by a franchisee, any wire and pole fixtures that do not unreasonably interfere with the cable service operations of the franchisee. The city shall pay costs associated with attaching or affixing the city's wire or fixture to the franchisee's infrastructure.
5.20.140 Protection of the city and residents.
(A) Indemnity Required. No franchise shall be valid or effective until and unless the city obtains an adequate indemnity from the franchisee. The indemnity must:
(1) Release the city from and against any and all loss, damage, expense, cost (without limitation the cost of litigation) liability and responsibility in or arising out of the construction, operation or maintenance of the cable communications system. Each cable communications system operator must further agree not to sue or seek any money or damages from the city in connection with the above-mentioned matters;
(2) Indemnify, hold harmless, and defend the city, its elected and appointed officers, agents, and employees, from and against any and all liability, loss, damage, cost, claims, demands, or causes of action of any kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees sustained by the city or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the cable communications system operator, or its agents, independent contractors or employees related to or in any way arising out of the construction, operation or repair of the system;
(3) Provide that the covenants and representations relating to the release, indemnification, and hold harmless provision shall survive the term of the franchise or other authorization and continue in full force and effect as to the party's responsibility to indemnify.
(B) Insurance Required. A franchisee (or those acting on its behalf) shall not commence construction or operation of the system without obtaining insurance in amounts and of a type satisfactory to the city. The required insurance must be obtained and maintained for the entire period the franchisee has facilities in the public rights-of-way. If the franchisee, its contractors, or subcontractors do not have the required insurance, the city may order such entities to stop operations until the insurance is obtained and approved.
(C) Proof. Certificates of insurance, reflecting evidence of the required insurance and naming the city as an additional insured, and other proofs as the city may find necessary, shall be filed with the city. For persons issued franchises after the effective date of the ordinance codified in this chapter, certificates and other required proofs shall be filed within thirty days of the issuance of a franchise, prior to the commencement of construction, once a year thereafter, and whenever there is any change in coverage. For entities that have facilities in the public rights-of-way as of the effective date of this chapter, the certificate shall be filed within sixty days of the effective date of this chapter, annually thereafter, and whenever there is any change in coverage, unless a pre-existing franchise provides for filing of certificates in a different manner. In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the term of the franchise, then in that event, the cable communications system operator shall furnish, at least thirty days prior to the expiration of the date of such insurance, a renewed certificate of insurance as proof that equal and like coverage has been obtained.
(D) Certificate Contents. All certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least thirty days' prior written notice has been given to the city. Policies shall be issued by companies authorized to do business under the laws of the state of California. Financial ratings of the insurer shall be no less than "A" VII or better in the latest edition of "Bests Key Rating Guide," published by A.M. Best Guide.
(E) Insurance Amounts. A cable communications system operator (and those acting on its behalf to construct or operate the system) shall maintain the following minimum insurance. The city shall be named as an additional insured by endorsement on the general liability and automotive policies; those insurance policies shall be primary and contain a cross-liability clause.
(1) Comprehensive general liability insurance to cover liability, bodily injury and property damage. Exposures to be covered are: premises, operations, products/completed operations and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:
| Each Occurrence | Annual Aggregate | |
|---|---|---|
| Bodily injury | $1,000,000.00 | $3,000,000.00 |
| Property damage | 1,000,000.00 | 3,000,000.00 |
| Personal injury | 3,000,000.00 |
Completed operations and products liability shall be maintained for two years after the termination of the franchise (in the case of the cable communications system owner or operator) or completion of the work for the cable communications system owner or operator (in the case of a contractor or subcontractor).
Property damage liability insurance shall include coverage for the following hazards: X - explosion, C - collapse, U - underground.
(2) Workers' compensation insurance shall be maintained during the life of this contract to comply with statutory limits for all employees, and in the case any work is sublet, each cable communications system operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each cable communications system operator. Each cable communications system operator and its contractors and subcontractors shall maintain during the life of this policy employers liability insurance. Workers' compensation insurance shall include a waiver of subrogation clause in favor of the city. The following minimum limits must be maintained:
| Workers' compensation | Statutory |
|---|---|
| Employer's liability | $500,000.00 per occurrence |
(3) Comprehensive Auto Liability.
| Each Occurrence | Annual Aggregate | |
|---|---|---|
| Bodily injury | $1,000,000.00 | $3,000,000.00 |
| Property damage | 1,000,000.00 | 3,000,000.00 |
| Personal injury | 1,000,000.00 | 3,000,000.00 |
Coverage shall include owned, hired, and nonowned vehicles. In every franchise agreement the city shall reserve the right to require any other insurance coverage it deems necessary depending upon exposures.
(F) Construction Bond. Every operator of a cable communications system shall obtain and maintain a construction bond to ensure the faithful performance of its responsibilities under this chapter and any franchise. The amount of the bond shall be set in the city franchise, but shall not be less than ten percent of the estimated cost of constructing or (in the case of existing systems) upgrading the system, and shall include a sufficient amount to cover the removal of facilities and/or restoration of city facilities within the right-of-way. The bond is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the city attorney. Bonds must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.
(G) Security Fund. Every cable communications system operator shall establish and maintain a cash security fund or provide the city an irrevocable letter of credit in the amount of one hundred thousand dollars to secure the payment of fees owed, to secure any other performance promised in a franchise, and to pay any taxes, fees, penalties or liens owed to the city. The letter of credit shall be in a form and with an institution acceptable to the city. Should the city draw upon the cash security fund or letter of credit, the cable communications system operator shall, within fourteen days, restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by the city for a franchisee where the city determines in its discretion that a particular franchisee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The city may from time to time require a franchisee to change the amount of the required security fund/letter of credit to reflect changed risks to the city and to the public, including delinquencies in taxes or other payments to the city. The cash security fund or letter of credit must be obtained prior to the effective date of any franchise, transfer or franchise renewal, unless a franchise specifically provides otherwise.
5.20.150 Enforcement and remedies.
(A) Franchise Violation-Notice and Procedures. Before revoking a franchise or issuing an order to assess liquidated damages, the city shall follow the procedures set forth below:
(1) The city shall notify a cable communications system operator in writing of any alleged violation ("violation notice") of a franchise or this chapter. The violation notice shall: (a) identify the violation; (b) direct the cable communications system operator to cure the violation or show cause why the violation cannot or should not be cured; and (c) state the time for the cable communications system operator's response, which shall be at minimum thirty days from the date of issuance of the violation notice, except for violations that present a danger to public health, safety or welfare, in which case the time for response may be shortened;
(2) Within the time period designated for response in the violation notice issue pursuant to subsection (A)(1) of this section, the cable communications system operator shall respond in writing to the city indicating that: (a) the cable communications system operator intends to contest the violation notice and describing all facts relevant to its claim; or (b) the cable communications system operator has completely cured the violation, in which case the cable communications system operator shall provide documentation demonstrating that the violation has been completely cured; or (c) the cable communications system operator has begun to correct the violation, however, the violation cannot be corrected immediately despite the cable communications system operator's continued due diligence, in which case the operator shall describe in detail the steps already taken and operator's proposed plan and time schedule for completely curing the violation. The city may accept, modify, or reject the cable communications system operator's proposed plan and time schedule for curing the violation. Correction of the violation is not complete until all damages and penalties owed are paid in full;
(3) If the cable communications system operator contests the violation notice or the city determines that the cable communications system operator has failed to completely cure the violation, to submit an acceptable plan to cure the violation, or to work diligently to cure the violation, the city shall schedule a hearing before the city manager or the city manager's designee ("violation hearing"). The city shall provide cable communications system operator written notice of the violation hearing at least twenty days prior to the hearing ("hearing notice");
(4) The hearing notice shall indicate: (a) the time and place of the violation hearing; (b) the nature of the violation; and (c) the cable communications system operator's right to present oral and written testimony at an open and public meeting;
(5) At the violation hearing, the city manager or the city manager's designee shall hear and consider evidence from the cable communications system operator, city staff and members of the public regarding the alleged violation. The cable communications system operator shall be given an opportunity to present any and all evidence relating to the alleged violation;
(6) If, based upon the evidence presented at the violation hearing, the city manager or the city manager's designee finds that cable communications system operator has violated its franchise, this chapter or any applicable state or federal law, the city manager or the city manager's designee may issue an order assessing liquidated damages if provided for by the cable communications system operator's franchise, or, subject to subsection (B) of this section and the terms of the cable communications system operator's franchise, revoke or shorten the franchise. The cable communication system operator may appeal the decision to the city council;
(7) If the cable communications system operator files a written appeal to the city council pursuant to subsection (A)(6) of this section, the city council shall hold a public hearing to consider the appeal. Notice of the hearing shall be given to the cable communications system operator at least twenty days prior to the hearing. Such notice shall include the information described in subsection (A)(4) of this section. If, based upon the evidence presented at the public hearing, the city council find that the cable communications system operator has violated its franchise, this chapter, or any applicable state or federal laws, the city council may issue an order assessing liquidated damages if provided for by the cable communications system operators' franchise, or, subject to subsection (B) of this section and the terms of the cable communications system operators' franchise, revoke or shorten the term of the franchise.
(B) Revocation and Termination. The city council may revoke a franchise or reduce the term of a franchise if it finds, after complying with procedures set forth in subsection (A) of this section, that a cable communications system operator has violated this chapter or its franchise or license; has defrauded or attempted to defraud the city or subscribers; or has attempted to evade the requirements of this chapter or its franchise or license. Except as to violations that are impossible to cure, and as provided in subsections (C) and (D) of this section, the franchise may only be revoked if the franchisee (1) was given notice of the default; and (2) thirty days to cure the default; and (3) the franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the city where it is impossible to cure the default in thirty days. Any revocation proceeding must conducted in accordance with applicable federal and state laws.
(C) Exception for Certain Acts. No opportunity to cure is required for repeated violations (provided that notice was provided pursuant to subsection (A) of this section), and fraud and attempted fraud shall be deemed incurable. Further, the city may declare a franchise forfeited without opportunity to cure where a franchisee (1) voluntarily stops providing service it is required to provide; or (2) transfers the franchise without the prior consent of the city.
(D) Effect of Termination or Forfeiture. Upon termination or forfeiture of a franchise, whether by action of the city as provided in subsection (C) of this section, or by passage of time, the franchisee must stop using the cable communications system for the purposes authorized by the franchise. The city may take possession of some or all of franchisee's facilities, consistent with provisions of applicable law, or require the franchisee or its bonding company to remove some or all of the franchisee's facilities from the city, and restore affected property to its same or better condition. This provision does not permit the city to remove facilities that are used to provide another service for which the franchisee holds a valid franchise issued by the city.
(E) Remedies Cumulative. Remedies provided for under this chapter or under a franchise shall be cumulative. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, does not limit a franchisee's duty to indemnify the city; or relieve a franchisee of its franchise obligations or limit the amounts owed to the city.
(F) Liquidated Damages Required in Franchise. A franchise granted pursuant to this chapter shall require liquidated damages, in an amount to be specified in the franchise, for specified breaches of the franchise including but not limited to, failure to commence construction, failure to meet construction plan benchmarks, failure to comply with rebuild plan benchmarks, failure to commence service, and material breach of franchise obligation(s). The franchise shall also provide that the city may withdraw liquidated damages owed from the grantee's security deposit, after complying with the procedures set forth in subsection (A) of this section. Liquidated damages shall commence on that date that performance was due and/or failed, and continue until the grantee demonstrates to the satisfaction of the city that the grantee has fully performed its obligations giving rise to the payment of liquidated damages. Any obligation to pay liquidated damages does not in any way affect the grantee's obligation to pay franchise fees or perform other franchise obligations and such liquidated damages do not constitute franchise fees and are not subject to any limitations on franchise fees contained in 47 U.S.C. § 542(b). Any obligation to pay liquidated damages are not costs of satisfying franchise requirements as provided in 47 C.F.R. § 76.925. A grantee may not pass the cost of any liquidated damages to subscribers through subscriber rates or itemize or otherwise identify on subscriber bills any obligation grantee may have to pay liquidated damages.
(G) Penalties, Fines and Other Monetary Sanctions.
(1) Penalties. In addition to any other remedies provided for in this chapter or otherwise available by law, the city shall have the power to impose civil penalties in the event a grantee violates any provision of this chapter, a franchise, or any regulation lawfully adopted thereunder. The amounts of such penalties shall be based on the following principles:
(a) Penalties shall exceed the financial benefits to a grantee delaying or failing to comply with the applicable requirement;
(b) Even where such benefits are not easily discernible, the penalties shall be high enough to have a significant deterrent effect on a grantee; and
(c) Penalties shall be sufficient to protect the city and other affected parties against loss of revenues resulting from violations.
(2) Other Monetary Sanctions. A franchise shall also provide for liquidated damages and other monetary sanctions, the amounts of which shall also reflect the foregoing principals.
(3) Private Suit Against Grantee.
(a) Any person or organization adversely affected by a violation, or by a pattern and practice of violations, shall have the right to sue a grantee in a court of competent jurisdiction for damages and for injunctive and other relief to require enforcement of the franchise. Organizations shall be entitled to sue on behalf of themselves or their members.
(b) The remedy provided in this chapter shall be in addition to any remedies provided by law.
(c) Except in emergency situations in which immediate relief is required, private litigants shall notify the city attorney not fewer than ten days prior to filing suit. However, suit by the city shall not preempt the private litigant's right to proceed.
(4) Except as otherwise provided in this chapter, any person who violates any provisions of this chapter shall be subject to a monetary penalty in an amount determined pursuant to the principles in subsection (G)(l) of this section.
5.20.160 Books and records.
(A) Generally. Each cable communications system operator shall provide the city access to books and records related in whole or in part to the construction, operation, or repair of the cable communications system, or a group of systems of which the system is a part, so that the city may inspect and copy these books and records. The records shall include, but are not limited to, revenue records and other records related to compliance with any provision of this chapter or a franchise. A franchisee is responsible for obtaining or maintaining the necessary possession or control of all such books and records, so that it can produce the documents upon request. Books and records must be maintained for a period of five years, except that a franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials. The phrase "books and records" shall be read expansively to include information in whatever format stored.
(B) Production. Books and records requested shall be produced to the city by a time and at a location in the city designated by the city manager. However, if the requested books and records are too voluminous, or for security reasons cannot be copied and moved, then the franchisee may request that the inspection take place at some other location mutually agreed to by the city and the franchisee, provided that (1) the franchisee must make necessary arrangements for copying documents selected by the city after its review; and (2) the franchisee must pay all travel and additional copying expenses incurred by the city (above those that would have been incurred had the documents been produced in the city) in inspecting those documents or having those documents inspected by its designee.
5.20.170 Reports.
(A) Obligation to Submit. The city manager may from time to time direct a franchisee to prepare reports and to submit those reports by a date certain, in a format prescribed by the city manager, in addition to those required by this chapter.
(B) Quarterly Reports. Unless an exemption is granted by the city manager, within forty-five days of the end of each calendar quarter, a franchisee shall submit a report to the city containing the following information:
(1) The number of service calls (calls requiring a truck roll) received during the prior quarter and the percentage of service calls compared to the subscriber base; and
(2) The total estimated hours of known outages as a percentage of total hours of operation. An outage is a loss of sound or video on any signal, or a significant deterioration of any signal affecting two or more subscribers.
(C) Annual Reports. Unless an exemption is granted by the city manager, no later than ninety days after the end of the operator's fiscal year, a franchisee shall submit the following information:
(1) A fully audited or self-certified revenue report signed by an officer of the cable communications system operator from the previous calendar year for the cable communications system, and a certified statement setting forth the computation of gross revenues used to calculate the franchise fee for the preceding year and a detailed explanation of the method of computation showing (i) gross revenues by category (e.g., basic service, pay, pay-per-view, advertising, installation, equipment, late charges, miscellaneous, other); and (ii) what, if any, deductions were made from gross revenues in calculating the franchise fee (e.g., bad debt, credits and refunds), and the amount of each deduction;
(2) A report showing, for each applicable customer service standard, the franchisee's performance with respect to that standard for each quarter of the preceding year. In each case where the franchisee concludes it did not comply fully, the franchisee will describe the corrective actions it is taking to assure future compliance. In addition, the report should identify the number and nature of all the customer service complaints received and an explanation of their dispositions;
(3) An ownership report, indicating all persons who at the time of filing control or own an interest in the franchisee of ten percent or more.
(D) Contemporaneous Reports. Within ten days of their receipt or (in the case of documents created by the operator or its affiliate) filing, a franchisee shall provide the city:
(1) Notices of deficiency or forfeiture related to the operation of the system; and
(2) Any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the franchisee or by any partnership or corporation that owns or controls the franchisee directly or indirectly.
5.20.180 Maps required.
Each franchisee shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the public rights-of-way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. Each franchisee shall provide a map to the city showing the location of its facilities, in such detail and scale as may be directed by the city public works director and update the map at least annually, and whenever the facility expands or is relocated. Copies of maps shall be provided in hard copy and on disk, in a commercially available electronic format specified by the city public works director.
5.20.190 Other records required.
Unless the city manager waives the requirement, a franchisee shall at all times maintain:
(A) Complaint Records. Records of all complaints received, their nature and resolution. The term "complaints" refers to complaints about any aspect of the franchisee's operations or customer service;
(B) Outage Records. Records of outages known to the franchisee, their cause and duration;
(C) Complaint Response. Records of service calls for repair and maintenance indicating the date and time service was requested, the date of acknowledgment and date and time service was scheduled (if it was scheduled), and the date and time service was provided, and (if different) the date and time the problem was solved;
(D) Installation Records. Records of installation/reconnection and requests for service extension, indicating date of request, date of acknowledgment, and the date and time service was extended;
(E) Customer Service. Records sufficient to show whether the franchisee has complied with each customer service standard that applies to it.
5.20.200 Exemptions.
The city manager may temporarily exempt any franchisee from its obligations under Sections 5.20.160 through 5.20.190 if the city manager determines that the requirement would be unduly burdensome or unnecessary, and that the city and subscriber interests may be adequately protected in some other manner.
5.20.210 Privacy.
A franchisee shall take all reasonable steps required so that it is able to provide reports, books and records to the city, including by providing appropriate subscriber privacy notices. Each franchisee shall be responsible for redacting data that applicable law prevents it from providing to the city. Nothing in this section shall be read to require a franchisee to violate state or federal subscriber privacy laws.
5.20.220 Procedures for paying franchise fees and fees in lieu of franchise fees.
(A) Fees Paid Quarterly. The franchise fee paid pursuant to Article 2 of this chapter, or fee in lieu of franchise fee paid pursuant to Article 3 of this chapter shall be paid quarterly unless otherwise specified in a franchise. Payment for each quarter shall be made to the city not later than forty-five days after the end of each calendar quarter.
(B) Quarterly Statement. Unless a franchise provides otherwise, a franchisee or other entity subject to a fee under Article 2 or 3 of this chapter shall file with the city within forty-five days of the end of each calendar quarter a statement showing gross revenues during the preceding quarter and the number of subscribers served.
(C) Acceptance of Payment Not a Release. No acceptance by the city of any payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim the city may have for additional sums payable.
(D) Fee Not in Lieu of Taxes. Neither the franchise fee under Article 2 of this chapter, nor the fee paid in lieu of the franchise fee under Article 3 of this chapter, is a payment in lieu of any tax, fee or other assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and operators or their services, but not including a tax, fee, or assessment which is unduly discriminatory against operators or cable subscriber(s)).
(E) Failure to Pay Franchise Fee. In the event that a fee payment is not received by the city on or before the due date set forth in this section or in a franchise, or the fee owed is not fully paid, the person subject to the fee will be charged interest from the due date at an interest rate equal to three percent above the rate for three-month federal treasury bills at the most recent United States Treasury Department sale of such treasury bills occurring prior to the due date of the franchise fee payment.
(F) Final Statement of Gross Revenues. Within ninety days of the date a franchisee ceases operations under a franchise (whether because of franchise termination, transfer, bankruptcy or for any other reason), the franchisee shall file a final statement of gross revenues covering the period from the beginning of the calendar year in which the operations ceased to the date operations ceased. The statement shall contain the information and be certified as required by Section 5.20.170(C)(1) of this code.
Article II Special Rules Applicable to Cable Systems
5.20.230 Applications—Generally.
(A) Application Required. An application must be filed for an initial and renewal cable system franchise, or for approval of a transfer. A request for renewal filed under 47 U.S.C. § 546(h) need not contain the information required by subsection (B)(l) of this section.
(B) Application Contents.
(1) The city manager may specify the information that must be provided in connection with an application, and the form in which the information is to be provided. At a minimum each application must identify the applicant including any affiliates, show that the applicant is financially, technically and legally qualified to construct, maintain and operate the cable system, contain a pro forma showing capital expenditures and expected income and expenses for the first five years the applicant is to hold the franchise, and show that the applicant is willing to comply unconditionally with its franchise obligations. In addition, any application for an initial or renewal franchise or rebuild of the operators system and/or facilities, must describe in detail the cable system that the applicant proposes to build, show where it will be located, set out the system construction schedule, and show that the applicant will provide adequate channels, facilities and other support for public, educational and government use (including institutional network use) of the cable system. The detailed description of the physical facilities proposed shall include at least the following:
(a) A description of the channel capacity, technical design, performance characteristics, headend, access (and institutional network, if required) facilities and equipment;
(b) The location of proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same; provided, however, that, if some of the descriptive data is not available at the time of application, the franchise may issue subject to conditions that the data be filed and approved by the city before construction begins and that the franchise will be deemed to be forfeited if the data is not supplied and approved; provided, further, that the foregoing proviso does not authorize the grant of a franchise where there is not sufficient information to appraise the impact of the applicant's proposal;
(c) A map of the general route the facility will follow; a designation of the portions of the system that will be placed aboveground and the portions that will be placed underground, and the construction techniques that the operator proposes to use in installing the system aboveground and underground; a schedule for construction of the facility, describing when and where construction will begin, how it will proceed, benchmarks indicating the schedule completion of portions of the system and when construction will be completed; and the expected effect on right-of-way usage, including information on the ability of the public rights-of-way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities;
(d) A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities;
(e) A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of the capacity, facilities and support for public, educational, and governmental use of the system (including institutional networks) applicant proposes to provide and why applicant believes that the proposal is adequate to meet the future cable-related needs and interests of the community;
(f) A demonstration of the financial qualifications of the applicant, including at least the following:
(i) The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services,
(ii) A statement regarding the applicant's financial ability to complete the construction to meet the timeframe proposed and to operate the cable system proposed certified by the applicant's chief financial officer;
(g) A demonstration of the applicant's technical ability to construct and/or operate the proposed cable system;
(h) A demonstration that the applicant is legally qualified, which proof must include a demonstration that the applicant:
(i) Has received, or is in a position to receive, necessary authorizations from state and federal authorities,
(ii) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws or similar laws) that allows the city to conclude the applicant cannot be relied upon to comply with requirements of franchise or provisions of this title,
(iii) Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or repair of its facilities;
and has not entered into any agreement that would prevent it from doing so, and
(iv) The applicant must not have submitted an application for an initial or renewal franchise to the city, which was denied, or as to which any challenges to such franchising decision were finally resolved (including any appeals) adversely to the applicant, within three years preceding the submission of the application;
(i) An applicant may show that it would be inappropriate to deny it a franchise by virtue of: (1) the particular circumstances surrounding the acts or omissions at issue; (2) the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant's principals; or (3) the remoteness of the acts or omissions from the operation of communications systems;
(j) The extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, proofs should be provided for that person;
(k) A description of the applicant's prior experience in cable system ownership, construction, and operation, and identification of cities and counties in California in which the applicant or any of its principals have a cable franchise or any interest therein, provided that an applicant that holds a franchise for the city and is seeking renewal of that franchise need only provide this information for other cities and counties in California where its franchise is scheduled to expire during the twelvemonth period prior to the date its application is submitted to the city and for other cities and counties in California where its franchise had been scheduled to expire during the twelve-month period after the date its application is submitted to the city. If an applicant has no other franchise in California, it shall provide the information for its operations in other states;
(2) An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.
(3) To be accepted for filing, an original and six copies of a complete application must be submitted. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
(4) An applicant (and the transferor and transferee, in the case of a transfer) shall respond to any request for information from the city, by the time specified by the city.
(C) Incomplete Applications. An application may be rejected if it is incomplete, or if the response to requests for information is not timely and complete.
5.20.240 Application for an initial franchise or renewal franchise.
(A) Scope. This section establishes additional provisions that apply to an application for an initial franchise, or a renewal franchise application that is not governed by 47 U.S.C. § 546(a)—(h).
(B) Process. Any person may apply for an initial or renewal franchise by submitting an application therefore on that person's own initiative, or in response to a request for proposals issued by the city. If the city receives an unsolicited application, it may choose to issue a request for additional proposals, and require the applicant to amend its proposal to respond thereto. The city shall promptly conduct such investigations as are necessary to act on an application.
(C) Consideration of Application. In determining whether to grant a franchise, the city may consider:
(1) The extent to which an applicant for renewal has substantially complied with the applicable law and the material terms of any existing cable franchise;
(2) Whether an applicant's quality of service under its existing franchise, including signal quality, response to customer complaints, billing practices, and the like has been reasonable in light of the needs of the community;
(3) Where the applicant has not previously held a cable system franchise in the city, whether the applicant's record in other communities indicates that it can be relied upon to provide high-quality service throughout any franchise term;
(4) Whether the applicant has the financial, legal, and technical ability to provide the services, facilities, and equipment set forth in an application, and to satisfy any minimum requirements established by the city;
(5) Whether the applicant's application is reasonable to meet the future cable-related needs and interests of the city, taking into account the cost of meeting such needs and interests;
(6) Whether issuance of a franchise is in the public interest considering the immediate and future effect on streets, public property, and private property that will be used by the applicant's cable system;
(7) Whether issuance of the franchise would reduce competition in the provision of cable service in the city;
(8) Such other matters as the city is authorized or required to consider.
(D) Issuance of Franchise. If the city determines that issuance of a franchise would be in the public interest considering the factors described in subsection (C) of this section, it may offer a franchise agreement to the applicant. No franchise shall become effective until the franchise is unconditionally accepted by the applicant, approved by the city council, and the franchise agreement is signed by both parties.
5.20.250 Application for renewal franchise filed pursuant to 47 U.S.C. § 546.
(A) Scope. This section establishes additional provisions that apply to applications for renewal governed by 47 U.S.C. § 546(a)—(g).
(B) Process. A franchisee that intends to exercise rights under 47 U.S.C. § 546(a)—(g) shall submit a notice in writing to the city in a timely manner clearly stating that it is activating the procedures set forth in those sections. The city shall thereafter commence any proceedings that may be required under federal law, and upon completion of those proceedings, the city may issue a request for proposals and an application may be submitted for renewal. The city may preliminarily deny the application by resolution, and if the application is preliminarily denied, the city may conduct such proceedings and by resolution establish such procedures and appoint such individuals as may be necessary to conduct any proceedings to review the application.
5.20.260 Application for transfer.
(A) Scope. This section establishes additional provisions that apply to applications for transfer approval.
(B) Information. An application for transfer must contain all the information required by the city manager, by Section 5.20.230 of this code, and all information required by any FCC transfer form.
(C) Consideration of Application. In determining whether a transfer application should be granted, denied, or granted subject to conditions, the city may consider the legal, financial, and technical qualifications of the transferee to operate the cable system; any potential impact of the transfer on subscriber rates or services; whether the incumbent operator is in compliance with its franchise; whether the transferee owns or controls any other cable system in the city, whether operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would otherwise adversely affect subscribers, the public, or the city's interest under this chapter, the franchise or other applicable law. The proposed transferee shall pay all reasonable costs incurred by the city in reviewing and evaluating the applications. The city may consider a resolution either approving or denying a transfer application within a reasonable period of time, or within the timeframes provided by federal law, whichever is longer. The city and the parties to the transfer may agree in writing to extend any federal timeframe.
(D) Minimum Conditions. In order to obtain approval of a transfer, an applicant must show, at a minimum, that: the transferee is financially, legally, and technically qualified; the transfer will not adversely affect the interests of subscribers, the public, or the city; and that noncompliance issues have been resolved to the satisfaction of the city. No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes.
5.20.270 Legal qualifications.
(A) Standards.
(1) The applicant must be willing to comply with the provisions of this chapter and applicable laws; and to comply with such requirements of a franchise as the city may lawfully require.
(2) The applicant must not have had any cable system or OVS franchise validly revoked, (including any appeals) by the city within three years preceding the submission of the application.
(3) The applicant must not have had an application to the city for an initial or renewal cable system franchise denied within three years preceding the submission of the application; and must not have had an application for an initial or renewal OVS franchise denied on any ground within three years of the application.
(4) The applicant or its principals shall not be issued a franchise if, at any time during the ten years preceding the submission of the application, applicant was convicted or found to have committed fraud, racketeering, securities fraud, anticompetitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers, or to substantially comply with its obligations.
(5) Applicant must have the necessary authority under California and federal law to operate a cable system, or show that it is in a position to obtain that authority.
(6) The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide.
(7) For purposes of subsections (A)(2) through (4) of this section, the term applicant includes any affiliate of applicant.
(B) Exception. Notwithstanding subsection (A) of this section, an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of subsections (C) and (D) of this section are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.
5.20.280 Franchise fee.
A cable communications system operator shall pay to the city a franchise fee in an amount equal to five percent of gross revenues, or such other amount as may be specified in the franchise; provided, however, that if the franchise specifies an amount, that amount shall be subject to increase should federal limits on fee payments be eliminated or changed and other operators are subject to a higher fee.
(A) Bundled Services. In the event that the franchisee shall, during the term of the franchise, offer bundled, tied, or combined cable services (which are subject to the franchise fee) with noncable services (which may not be subject to the franchise fee) to individual subscribers, the combined revenues from such bundled services shall be allocated consistent with the rates or prices advertised by the franchisee through its marketing materials or on its published rate card. In the event the franchisee does not advertise or publish separate prices for the combined services, the percentage that the price for the combined services is discounted from the regular retail rates of the individual services shall be prorated across all the services in the bundled package; provided, however, that the net revenues derived from services subject to mandatory tariff rates imposed by the California Public Utilities Commission (or other governmental entity having such authority) shall be deducted from the combined revenue to determine the revenue subject to the franchise fee. As an example, franchisee may offer a "bundle" of video, voice and data services for a flat fee of seventy-five dollars where the retail rate for the services purchased on an individual basis would equal one hundred dollars. Assuming that there is no service subject to the mandated tariff rate, grantee would apply a twenty-five percent discount to each service. Thus, if the retail rate for the cable service in the bundle were fifty dollars, grantee would recognize cable service revenue in the amount of thirty-seven dollars and fifty cents and pay a franchise fee on that revenue.
(B) The definition of gross revenue is to be as inclusive as possible consistent with existing applicable law. If a change in federal law occurs subsequent to the effective date of the ordinance codified in this chapter, such change shall not impact the gross revenues definition in such a way to reduce gross revenues unless the change specifically preempts the affected portion of the definition in subsection (B) of this section.
5.20.290 No exclusivity.
A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service. However, nothing in this chapter prevents a franchisee from entering into an otherwise lawful, mutually desired exclusive arrangement with a building owner or manager of a multiple dwelling unit or commercial subscriber.
5.20.300 Minimum franchise conditions.
In addition to satisfying such additional or stricter conditions as the city finds necessary based on its investigations, the following elements shall be required in every franchise.
(A) System Design. Each franchisee shall provide a cable system that uses at least seven hundred fifty Megahertz equipment of high quality and reliability. Each franchisee shall install and activate the return portion of the cable system.
(B) Public, Educational and Government Use of the System.
(1) A franchisee shall provide a minimum of three channels for PEG access to each subscriber.
(2) Each franchisee shall install, maintain, and replace as necessary, a dedicated, bi-directional fiber optic link (or link with equivalent or superior functionality, capacity and reliability) between its headend and a location designated by the city as the primary access center.
(3) Each franchisee shall install, maintain, and replace activated two-way cable plant and all headend, cable plant, and node equipment required to make it operable so that the city, schools, and all designated PEG access centers and access facilities located within the franchise area will be able to send and receive signals (video, audio and data) using the activated two-way cable plant.
(4) Each franchisee shall ensure that technically adequate signal quality, routing systems, and switching and/or processing equipment are initially and continuously provided for all access interconnections both within franchisee's cable system and with other cable systems throughout the duration of its franchise.
(5) In the event a franchisee makes any change in the cable system and related equipment and facilities or in the franchisee's signal delivery technology which directly or indirectly substantially affects the signal quality or transmission of access programming, the franchisee shall at its expense take necessary steps or provide necessary technical assistance, including the acquisition of all necessary equipment, to ensure that the capabilities of access programmers are not diminished or adversely affected by such change.
(6) A franchisee shall maintain all access channels (both upstream channels and downstream channels) and all interconnections of access channels at the same level of technical quality and reliability as the best commercial channels carried on the grantee's system.
(C) Service to Franchise Area. It is the policy of the city to ensure that every cable system provide service in its franchise area upon request to any person or any government building. Each franchisee shall extend service upon request within its franchise area, provided that, a franchise may permit a franchisee to require a potential subscriber to contribute a fair share of the capital costs of installation or extension as a condition of extension or installation in cases where such extension or installation may be unduly expensive. Service must be provided within time limits specified in subsection (D) of this section.
(D) Time for Extension. Except as a franchise otherwise provides, service must be extended upon request to any person or to any government building in a franchisee's franchise area (i) within seven days of the request, where service can be provided by activating or installing a drop; (ii) within ninety days of the request where an extension of one-half mile or less is required; or (iii) within six months where an extension of one-half mile or more is required.
(E) Technical Standards. A cable system within the city shall meet or exceed the technical standards set forth in 47 C.F.R. § 76.601 and any other applicable technical standards.
(F) Testing. Each operator shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under applicable FCC standards, this chapter or a franchise.
(G) Interconnection. Upon request of the city, every cable system shall be required to interconnect with every other cable system within the city, or adjacent to the city, on fair and reasonable terms for purposes of providing PEG and I-Net services.
(H) Continuity of Service. Each franchisee shall, during the term of the franchise, ensure that subscribers are able to receive continuous service. In the event the franchise is revoked or terminated, the franchisee may be required to continue to provide service for a reasonable period to assure an orderly transition of service from the franchisee to another entity. A franchise may establish more particular requirements under which these obligations will be satisfied.
5.20.310 Rate regulation and consumer protection.
(A) All Rates Subject to Regulation. The city may regulate any of the operator's rates and charges, except to the extent it is prohibited from doing so by law. The city will regulate rates in accordance with FCC rules and regulations, where applicable. Except to the extent FCC rules provide otherwise, all rates and charges that are subject to regulation, and changes in those rates or charges must be approved in advance. The city manager may take any required steps to file complaints, toll rates, issue accounting orders or take any other steps required to comply with FCC regulations. The city council shall be responsible for issuing rate orders that establish rates or order refunds.
(B) No Rate Discrimination. Except to the extent the city may not enforce such a requirement, an operator is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a nondiscriminatory basis to similar classes of subscribers throughout the franchise area; and a franchisee may offer discounts for the elderly, the disabled, or the economically disadvantaged; and such other discounts as it is expressly entitled to provide under federal law, if such discounts are applied in a uniform and consistent manner.
(C) Redlining Prohibited. An operator shall not deny access or charge different rates to any group of subscribers or potential subscribers because of the income of the residents of the local area in which such group resides.
(D) Customer Service.
(1) Each operator must satisfy FCC, state and the city cable customer service standards and consumer protection standards. The city cable customer service standards may be adopted by resolution. In the case of a conflict among standards, the stricter standard shall apply.
(2) For violation of cable customer service standards, penalties will be imposed as follows:
(a) Two hundred dollars for each day of each material breach, not to exceed six hundred dollars for each occurrence of material breach;
(b) If there is a subsequent material breach of the same provision within twelve months, four hundred dollars for each day of each material breach, not to exceed one thousand two hundred dollars for each occurrence of the material breach;
(c) If there is a third or additional material breach of the same provision within twelve months of the first, one thousand dollars for each day of each material breach, not to exceed three thousand dollars for each occurrence of the material breach.
(3) Any penalty assessed under this section will be reduced dollar for dollar to the extent any liquidated damage provision of a franchise imposes a monetary obligation on a franchisee for the same customer service failures, and no other monetary damages may be assessed. The city will provide notice, and impose penalties, under this section pursuant to the procedures established by California Government Code § 53088.2(r).
Article III Open Video Systems
5.20.320 Additional definitions.
"OVS agreement" means a contract entered into in accordance with the provisions of this chapter between the city and an OVS franchisee setting forth the terms and conditions under which the franchise will be exercised.
5.20.330 Applications for grant or renewal of franchises.
(A) Initial and Renewal Franchise. Application.
(1) A written application shall be filed with the city for grant of an initial or renewal franchise.
(2) To be acceptable for filing, a signed original of the application shall be submitted together with six copies. The application must conform to any applicable request for proposals, and contain all information required under subsection (B) of this section. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
(B) Contents of Applications. The city manager may specify the information that must be provided in connection with a request for proposals or an application for an initial or renewal franchise. At a minimum, each application must: identify the applicant, where it plans to construct its system, and the system construction schedule; show that the applicant will provide adequate channels, facilities and other support for public, educational and government use (including institutional network use) of the OVS; and show that the applicant is financially, technically and legally qualified to construct and operate the OVS. The application must contain the following information:
(1) Identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent;
(2) A proposal for construction of the open video system that includes at least the following:
(a) A description of the services that are to be provided over the facility,
(b) Identification of the area of the city to be served by the proposed system, including a description of the proposed franchise area's boundaries,
(c) The location of proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same,
(d) A map of the route the facility will follow a designation of the portions of the system that will be placed aboveground and the portions that will be placed underground, and the construction techniques that the operator proposes to use in installing the system aboveground and underground; a schedule for construction of the facility, describing when and where construction will begin, how it will proceed, benchmarks for completion of phases, and when it will be completed; expected effect on rights-of-way usage, including information on the ability of the public rights-of-way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities,
(e) A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities;
(3) Evidence satisfactory to the city that the applicant has the financial resources to complete the proposed project, and to construct, operate and repair the proposed facility over the franchise term. It is not the intent of the city to require an applicant to prove that the services it proposes to offer will succeed in the marketplace;
(4) Evidence satisfactory to the city that applicant is technically qualified to construct, operate and repair the proposed facility. At a minimum, the applicant must show that it has experience or resources to ensure that work is to be performed adequately, and can respond to emergencies during and after construction is complete;
(5) Evidence satisfactory to the city that the applicant is legally qualified, which proof must include a demonstration that the applicant:
(a) Has received, or is in a position to receive, necessary authorizations from state and federal authorities,
(b) Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows city to conclude the applicant cannot be relied upon to comply with requirements of franchise, or provisions of this chapter,
(c) Is willing to enter into a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or maintenance of its facilities, and has not entered into any agreement that would prevent it from doing so;
(6) An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law;
(7) An applicant may show that it would be inappropriate to deny it a franchise by virtue of: the particular circumstances surrounding the acts or omissions at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant's principals, or the remoteness of the acts or omissions from the operation of open video system facilities;
(8) To the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, the proofs should be provided for that person. An applicant will be presumed to have the requisite financial, or technical or legal qualifications to the extent such qualifications have been reviewed and approved by a state agency of competent jurisdiction; or if applicant is a holder of a franchise in the city for a cable system or open video system, and conduct under such other franchise provides no basis for additional investigation.
(C) Procedure for Applying for Grant of a Franchise.
(1) A person may apply for an initial or renewal franchise on its own initiative or in response to a request for proposals. Upon receipt of an application, the city shall promptly proffer the applicant a proposed OVS agreement, which shall be mailed to the person requesting its issuance and made available to any other interested party. The city may request such additional information, as it deems appropriate.
(2) An applicant shall respond to requests for information completely, and within the time directed by the city, and must strictly comply with procedures, instructions, and requirements the city may establish.
(3) An application may be rejected if it is incomplete or the applicant fails to follow procedures or respond fully to information requests.
(D) Evaluation. In evaluating a franchise application, the city may consider the following:
(1) The extent to which the applicant has substantially complied with the applicable law and the material terms of any existing city OVS franchise;
(2) Whether the applicant has the financial, technical, and legal qualifications to hold an OVS franchise;
(3) Whether the application satisfies any minimum requirements established by the city for, or will otherwise provide adequate public, educational, and governmental use capacity, facilities, or financial support (including with respect to institutional networks);
(4) Whether issuance of a franchise would require replacement of property or involve disruption of property, public services, or use of the public rights-of-way;
(5) Whether the approval of the application may eliminate or reduce competition in the delivery of cable service in the city.
(E) Issuance. If the city finds that it is in the public interest to issue a franchise considering the factors above, and such other matters as it is required or entitled to consider, and subject to the applicant's entry into an appropriate OVS agreement, it shall issue a franchise. Prior to deciding whether or not to issue a franchise, the city may hold one or more public hearings or implement other procedures under which comments from the public on an application may be received.
(F) Legal Qualifications. In order to be legally qualified:
(1) The applicant must be willing to comply with the provisions of this chapter and applicable laws, and to comply with such requirements of an OVS agreement as the city may lawfully require;
(2) The applicant must not hold a cable system franchise, or have pending an application for a cable system franchise with the city;
(3) The applicant must not have had any cable system or OVS franchise validly revoked, (including any appeals) by the city within three years preceding the submission of the application;
(4) The applicant may not have had an application for an initial or renewal cable system franchise to the city denied within three years preceding the submission of the application;
(5) The applicant may not have had an application for an initial or renewal OVS franchise denied on any grounds within three years of the applications;
(6) The applicant or its principals shall not be issued a franchise if, at any time during the ten years preceding the submission of the application, applicant was convicted or found to have committed fraud, racketeering, securities fraud, anticompetitive actions, unfair trade practices or other conduct of such character that the applicant cannot be relied upon to deal truthfully with the city and the subscribers or to substantially comply with its obligations;
(7) Applicant must have the necessary authority under California and federal law to operate an OVS, and must be certified by the FCC under Section 653 of the Cable Act.
(8) The applicant shall not be issued a franchise if it files materially misleading information in its application or intentionally withholds information that the applicant lawfully is required to provide; and
(9) For purposes of subsection (F)(2) through (5) of this section, the term applicant includes any affiliate of applicant.
(G) Exception. Notwithstanding subsection (F) of this section, an applicant shall be provided a reasonable opportunity to show that a franchise should issue even if the requirements of subsection (F)(4) and (5) of this section are not satisfied, by virtue of the circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and prevent their recurrence, the lack of involvement of the applicant's principals, or the remoteness of the matter from the operation of a cable system.
5.20.340 Transfers.
(A) City Approval Required. No transfer shall occur without prior written notice to and approval of the city.
(B) Application.
(1) A franchisee shall notify the city within ten days of any proposed transfer, and submit an application for its approval.
(2) The city manager may specify information that must be provided in connection with a transfer application. At a minimum, an application must: describe the entities involved in the transaction and the entity that will hold the franchise; describe the chain of ownership before and after the proposed transaction; show that the entity that will hold the franchise will be legally, financially, and technically qualified to do so; attach complete information on the proposed transaction, including the contracts or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein; and attach any shareholder reports or filings with the securities and exchange commission ("SEC") that discuss the transaction.
(3) For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city may deem necessary to determine whether the transfer is in the public interest and should be approved, denied or conditioned. If the transferee or franchisee refuses to provide information, or provide incomplete information, the request for transfer may be denied.
(C) Determination by the City.
(1) In deciding whether a transfer application should be granted, denied or granted subject to conditions, the city council may consider the legal, financial, and technical qualifications of the transferee to operate the OVS; whether the incumbent OVS operator is in compliance with its OVS agreement and this chapter and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other OVS or cable system in the city; and whether
operation by the transferee may eliminate or reduce competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the public, or the city's interest under this title, the OVS agreement or other applicable law.
(2) In order to obtain approval of a transfer, an applicant must show, at a minimum, that: the transferee is qualified; the transfer will not adversely affect the interests of subscribers, the public, or the city; and that noncompliance issues have been resolved. No application shall be granted unless the transferee agrees in writing that it will abide by and accept all terms of this chapter and the franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous franchisee for all purposes. The proposed transferee shall pay all reasonable costs incurred by the city in reviewing and evaluating the applications.
5.20.350 Minimum requirements.
(A) PEG Access. No OVS operator shall be issued a franchise, or may commence construction of an OVS system, until (1) it agrees to match in all respects the highest PEG obligations borne by any operator in the city; or (2) it agrees to PEG obligations acceptable to the city.
(B) Institutional Network. Any OVS operator that constructs an I-Net must match in all respects the highest I-Net obligations borne by any operator in the city, unless it agrees to alternative I-Net obligations acceptable to the city.
(C) Construction Provisions. Every OVS agreement shall specify the construction schedule that will apply to any required construction, upgrade, or rebuild of the OVS. The schedule shall provide for prompt completion of the project, considering the amount and type of construction required.
(D) Testing. Each OVS operator shall perform at its expense such tests as may be necessary to show whether or not the franchisee is in compliance with its obligations under this chapter or a franchise.
(E) Consumer Protection Provisions. Every franchisee must satisfy customer service consumer protection requirements established from time to time under state or local law and applicable to OVS.
5.20.360 Special termination rules.
If a franchisee's FCC certification is revoked or otherwise terminates as a result of the passage of time or as a matter of law, the city may revoke the OVS franchise after a hearing. The OVS franchise may also be revoked if federal regulations or statutory provisions governing OVS are declared invalid or unenforceable or are repealed.
5.20.370 Rate regulation.
The city may regulate a franchisee's rates and charges except as prohibited by law, and may do so by amendment to this chapter, separate ordinance, by amendment to an OVS agreement, or in any other lawful manner.
5.20.380 Fee in lieu of franchise fee.
(A) OVS Operators. In lieu of the franchise fee required by Article II of this chapter, an OVS franchisee shall pay a fee of five percent of the gross revenues of the franchisee, its affiliates or any OV S operator of the OV S.
(B) Persons Leasing OVS Capacity.
(1) A person leasing capacity from an OV S operator, other than a person whose revenues are included in the payment made under subsection (A) of this section, shall pay the city a fee in lieu of the franchise fee required by Article 2 of this chapter of five percent of the gross revenues of such person.
(2) Notwithstanding the foregoing, where franchisee charges a person, other than an affiliate, to use its OVS (the "use payments"); and that person recovers those use payments through charges to its subscribers that are included in that person's gross revenues; and that person fully recovers the use payments through the charges to its subscribers and pays a fee on those charges pursuant to subsection (A) of this section, then franchisee may deduct from its gross revenues the use payments it receives from that person.
5.20.390 Exclusive contracts.
A franchisee may not require a subscriber or a building owner or manager to enter into an exclusive contract as a condition of providing or continuing service, nor may a franchisee enter into any arrangement that would effectively prevent other persons from using the OVS to compete in the delivery of cable services with a franchisee or its affiliates.
Article IV Miscellaneous
5.20.400 Captions.
The captions to sections throughout this chapter are intended solely to facilitate reading and reference to the sections and provisions of this chapter. Such captions shall not affect the meaning or interpretation of this chapter.
5.20.410 Calculation of time.
Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this chapter or any franchise, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed in this chapter, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of time.
5.20.420 Severability.
If any term, condition, or provision of this chapter shall, to any extent, be held to be invalid or unenforceable by a valid order of any court or regulatory agency, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, such provision shall thereupon return to full force and effect without further action by the city and shall thereafter be binding on the franchisee and the city.
5.20.430 Connections to cable system; use of antennae.
(A) Subscriber Right to Attach. To the extent consistent with federal law, subscribers shall have the right to attach VCR's, receivers, and other terminal equipment to a franchisee's cable system. Subscribers also shall have the right to use their own remote control devices and converters and other similar equipment.
(B) Removal of Existing Antennae. A franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, or prohibit installation of a new antenna, provided that such antenna is connected with an appropriate device and complies with applicable law.
5.20.440 Discrimination prohibited.
(A) No Retaliatory Actions. A cable communications system operator shall not discriminate among persons or the city or take any retaliatory action against a person or the city because of that entity's exercise of any right it may have under federal, state, or local law, nor may the operator require a person or the city to waive such rights as a condition of taking service.
(B) Employment and Hiring Practices. A cable communications system operator shall not refuse to employ, discharge from employment, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of race, color, creed, national origin, sex, sexual orientation, age, disability, religion, ethnic background or marital status. A cable communications system operator shall comply with all federal, state, and local laws and regulations governing equal employment opportunities, and hiring practices, as the same may be amended from time to time.
5.20.450 Transitional provisions.
(A) Persons Operating Without a Franchise. The operator of any facility installed as of the effective date of the ordinance codified in this chapter, for which a franchise is required under this chapter, shall have three months from the effective date of the ordinance codified in this chapter to file one or more applications for a franchise. Any operator timely filing such an application under this subsection shall not be subject to a penalty for failure to have such a franchise so long as the application remains pending; provided, however, nothing in this chapter shall relieve any cable communications system operator of any liability for its failure to obtain any permit or other authorization required under other provisions of the city code, and nothing in this chapter shall prevent the city from requiring removal of any facilities installed in violation of the city code.
(B) Persons Holding Franchises. Any person holding an existing franchise for a cable communications system may continue to operate under the existing ordinance to the conclusion of its present term (but not any renewal or extension thereof) with respect to those activities expressly authorized by the franchise; and provided further that, such person shall be subject to the other provisions of this chapter to the extent permitted by law.
(C) Persons with Pending Applications. Pending applications shall be subject to this chapter. A person with a pending application shall have thirty days from the effective date of the ordinance codified in this chapter to submit additional information to comply with the requirements of this chapter governing applications.
CUSTOMER SERVICE STANDARDS
The Franchisee shall comply with the customer service and reporting requirements in this section, or as amended. These requirements include but are not limited to the requirements set forth in FCC regulations, including 47 C.F.R. § 75.309 and other applicable law. To the extent the provisions of this section differ from applicable FCC regulations or any applicable law, the provision or provisions that impose the highest standard or greatest legal duties or obligations upon the Franchisee shall take precedence, unless a different order of precedence is expressly set herein.
(1) Office Availability.
1.1 Each Franchisee will maintain at least one or more convenient locations in the City open for walk-in traffic at least ten (10) hours per day (except legal holidays) Monday through Friday, with some evening hours, and at least five (5) hours on Saturday to allow Subscribers to pay bills. The Franchisee shall provide to Subscribers a convenient means to drop off equipment and to pick up equipment by providing a location within the City for pick-up and drop off of equipment or by providing for pick up and delivery of equipment at no cost to the customer (i.e. truck roll, postage paid mailer).
1.2. Each Franchisee will perform service calls, installations, and disconnects at least ten (10) hours per day Monday through Saturday, except legal holidays, provided that a Franchisee will respond to outages twenty-four (24) hours a day, seven (7) days a week.
(2) Telephones. All Call Response statistics shall be measured on the basis of call response statistics in all call centers that serve Subscribers. If the call centers serve Subscribers located in other communities, the Franchisee shall ensure that call center representatives do not give priority or preferential treatment to Subscribers located in other communities.
(A) Definition of Call Response terms:
(i) Answer time is the interval between when the Franchisee receives a call and when an interactive voice response (IVR) or agent answers.
(ii) Speed of Answer is the amount of time between when the customer is transferred into the agent queue from either an IVR or an agent and the time an agent answers.
(iii) Calls Abandoned is the percentage of calls in any agent queue that are abandoned.
(iv) Trunks Busy represents the percentage of time customers receive a busy signal when they call customer service during normal business hours.
2.1. Each Franchisee will establish a publicly listed local toll-free telephone number. Customer service representatives must answer the phone at least ten (10) hours per day, Monday through Saturday, except legal holidays, for the purpose of receiving requests for service, inquiries, and complaints from Subscribers. After such business hours the phone will be answered so that customers can register complaints and report service problems on a twenty-four (24) hour per day, seven (7) day per week basis, and so that the Franchisee can respond to service outages as required herein.
2.2. Standards for Call Response.
2.2.1. Answer Time will not exceed thirty (30) seconds or four (4) rings. Under normal operating conditions the Franchisee shall meet this requirement at least ninety (90) percent of the time.
2.2.2. The average Speed of Answer shall not exceed thirty (30) seconds. Under normal operating conditions the Franchisee shall meet this requirement at least ninety (90) percent of the time.
2.2.3. The percentage of Calls Abandoned shall not exceed three (3) percent under normal operating conditions.
2.2.4. Subscribers shall receive a Trunks Busy signal less than three (3) percent of the time under normal operating conditions.
2.3. Call Response Reports.
2.3.1. Franchisee shall submit reports on Call Response statistics every calendar quarter, except as otherwise provided in this section.
2.3.2. If any of a Franchisee's quarterly Call Response statistics fail to demonstrate compliance with any applicable requirement, the Franchisee must thereafter submit monthly reports on all Call Response times until the Franchisee requests and the City approves resuming quarterly reporting.
2.3.3. Information in the reports about Call Response times shall be determined on the basis of the simple average of results during business hours under normal operating conditions for the entire reporting period, and any report submitted at the end of a calendar quarter shall report the total number of calls during the proceeding quarter and the average Call Response times during that quarter.
2.4. Other Reports.
2.4.1. A Franchisee shall submit reports on all customer service standards identified in this Section during each successive calendar quarter for the term of the Franchise except as otherwise might be provided herein. If a Franchisee's reports for two (2) quarters within a calendar year fail to demonstrate that the Franchisee has complied with any customer service standard in this section, the Franchisee shall thereafter submit monthly reports about performance of each such requirement until it reports three (3) consecutive months with less than five (5) percent deviation from any minimum required standard unless the Franchisee demonstrates to the City's satisfaction that the deviation occurred when it was not operating under normal operating conditions as defined in 47 C.F.R. § 76.309 and reports on the nature and duration of such non-normal operating conditions.
2.4.2. Timing. A Franchisee shall submit reports within thirty (30) days after the close of the applicable reporting period. Each report shall include data from the applicable reporting period.
2.4.3. Each of the reporting requirements in this Section is self-executing and the Franchisee agrees that the City does not need to provide additional notice or an opportunity to cure in order to establish that the Franchisee has committed a breach of these requirements for the purposes of the Franchisee's obligation to pay liquidated damages as described in this Section.
2.4.4. Compliance. If a monthly or quarterly report indicated that a Franchisee has failed to meet any of the minimum required standards, the Franchisee shall provide a written explanation of the deviation within ten (10) business days of the report, including steps being taken to cure the deviation, and the time expected to implement the cure. A Franchisee must cure within thirty (30) days unless a longer period is agreed to in writing by the City, which agreement shall not be unreasonably withheld.
(3) Scheduling Work.
3.1. All appointments for service, installation, or disconnection will be specified by date. Each Franchisee will set a specific time at which the work will be done, or offer a choice of time blocks, which will not exceed four (4) hours in length. A Franchisee my also, upon request, schedule service installation calls outside normal business hours, for the express convenience of the customer.
3.2. If at any time an installer or technician is late for an appointment and/or believes a scheduled appointment time will be missed, an attempt to contact the customer will be made before the time of appointment and the appointment rescheduled at a time convenient to the customer. If rescheduling is necessary, it is the Franchisee's burden to prove it met the appointment.
3.3. The Franchisee will offer and fully describe to Subscribers who have experienced a missed appointment (where the missed appointment was not the Subscriber's fault) that the Subscriber may choose between the following options:
3.3.1. Installation or service call free of charge, if the appointment was for an installation or service call for which a fee was to be charged;
3.3.2. One (1) month of the most widely subscribed to service tier free of charge for other appointments; and
3.3.3. An opportunity to elect remedies under California Civil Code 1722, if applicable.
3.4. If the Franchisee makes reasonable and no less than three (3) attempts to confirm an appointment during the scheduled appointment time or appointment window and is unsuccessful in obtaining such confirmation, the Franchisee may assume that the customer has cancelled the appointment.
(4) Service Standards.
4.1. Under normal operating conditions, requests for service, repair, and maintenance must be acknowledged by a trained customer service representative within twenty-four (24) hours, or before the end of the next business day, whichever is earlier.
4.2. A Franchisee will respond to all other inquiries (including billing inquiries) within five (5) business days of the inquiry or complaint.
4.3. Under normal operating conditions, repairs and maintenance for outages or service interruptions must be completed within twenty-four (24) hours after the outage or interruption becomes known to Franchisee where the Franchisee has adequate access to facilities to which it must have access in order to remedy the problem.
4.4. Under normal operating conditions, work to correct all other service problems must be begun by the next business day after notification of the service problem, and must be completed within five (5) business days from the date of the initial request.
4.5. When normal operating conditions do not exist, a Franchisee will complete the work in the shortest time possible.
4.6. A Franchisee will not cancel a service or installation appointment with a customer within 24 hours of the appointment or after the close of business on the business day preceding the scheduled appointment, whichever is earlier.
4.7. Requests for additional outlets, service upgrades or other connections (e.g., DMX, VCR, A/B switch) separate from the initial installation will be performed within seven (7) business days after an order has been placed.
4.8. Under normal operating conditions, the service standards set out in Sections 4.14.7 will be met at least ninety-five (95) percent of the time, measured on a quarterly basis.
4.9. The failure of the Franchisee to hire sufficient staff or to properly train its staff will not justify a Franchisee's failure to comply with this provision.
(5) Disabled Services. With regard to Subscribers with disabilities, upon Subscriber request, each Franchisee will arrange for pickup and/or replacement of converters or other Franchisee equipment at the Subscriber's address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer).
(6) Notice to Subscribers Regarding Service. A Franchisee will provide each Subscriber at the time service is installed, and annually thereafter, clear and accurate written information:
6.1. On placing a service call, filing a complaint, or requesting an adjustment (including when a Subscriber is entitled to refunds for outages and how to obtain them);
6.2. Showing the telephone number of the City office responsible for administering the Cable Television Franchise;
6.3. Detailing current rates and charges (which must include any senior, disabled or other discounts offered and the least expensive tier of service available), Channel positions, services provided, delinquent Subscriber disconnect and reconnect procedures; information regarding the availability of parental control devices, the conditions under which they will be provided and the cost (if any) charged;
6.4. Describing conditions that must be met to qualify for discounts;
6.5. Describing any other of the Franchisee's policies in connection with its Subscribers; and
6.6. Describing any discounts, services, or specialized equipment available to Subscribers who are Seniors or with disabilities; explaining how to obtain them; and explaining how to use any accessibility features.
(7) Notices to the City. Franchisee will provide the City with copies of all notices provided to its Subscribers pursuant to this article.
(8) Changes in Noticed Information. Franchisee will provide the City Manager (or designee) at least sixty (60) days, and all Subscribers at least thirty (30) days, written notice of any material changes in the information required to be provided under this article, except that, if federal law establishes a shorter notice period and preempts this requirement, the federal requirement will apply.
(9) Truth in Advertising. Each Franchisee will take appropriate steps to ensure that all written Franchisee promotional materials, announcements, and advertising of residential Cable service to Subscribers and the general public, where price information is listed in any manner, clearly and accurately discloses price terms. In the case of telephone orders, a Franchisee will take appropriate steps to ensure that price terms are clearly and accurately disclosed to potential customers in advance of taking the order.
9.1. Each Franchisee will maintain a file open for public inspection containing all notices provided to Subscribers under these customer service standards, as well as all promotional offers made to Subscribers. The notices and offers will be kept in the file for at least one (1) year from the date of such notice or promotional offer.
(10) Interruptions of Service. A Franchisee shall inform Subscribers and the City, three (3) days prior to any scheduled or planned interruption of service for planned maintenance or construction; provided, however, that planned maintenance that does not require more than one (1) hour interruption of service and/or that occurs between the hours of 12:00 a.m. and 6:00 a.m. will not require such notice to Subscribers. Notice to the City must be given no less than twenty-four (24) hours before the anticipated service interruption.
(11) Prorated Billing. A Franchisee's first billing statement after a new installation or service change will be prorated as appropriate and will reflect any security deposit.
(12) Billing Statement.
12.1. A Franchisee's billing statement must be clear, concise, and understandable; must itemize each category of service and equipment provided to the Subscriber; and must state clearly the charges therefor.
12.2. A Franchisee's billing statement must show a specific payment due date not earlier than the later of:
12.2.1. Fifteen (15) days after the date the statement is mailed; or
12.2.2. The tenth (10th) day of the service period for which the bill is rendered.
12.3. A late fee or administrative fee (collectively referred to below as a "late fee") may not be imposed for payments earlier than twenty-seven (27) days after the due date specified in the bill.
12.4. A late fee may not be imposed unless the Subscriber is provided written notice at least ten (10) days prior to the date the fee is imposed that a fee will be imposed, the date the fee will be imposed and the amount of the fee that will be imposed if the delinquency is not paid. A late fee may not be imposed unless the outstanding balance exceeds $10.00 and may not exceed $5.00.
12.5. Subscribers will not be charged a late fee or otherwise penalized for any failure by a Franchisee, including failure to timely or correctly bill the Subscriber, or failure to properly credit the Subscriber for a payment timely made. Payments will be considered timely if postmarked on the due date.
12.6. A Franchisee's bill must permit a Subscriber to remit payment by mail or in Person at the Franchisee's local office or payment facility.
(13) Credit for Service Impairment.
13.1. A Subscriber's account will be credited a prorated share of the monthly charge for the service upon Subscriber request if a Subscriber is without service or if service is substantially impaired for any reason for a period exceeding four (4) hours during any twenty-four (24) hour period, or automatically if the loss of service or impairment is for twenty-four (24) hours or longer.
13.2. A Franchisee need not credit Subscriber where it establishes that a Subscriber will obtain a refund for a loss of service or impairment caused by the Subscriber or by Subscriber-owned equipment (not including, for purposes of this Section, in-home wiring installed by the Franchisee).
(14) Billing Complaints. Franchisee will respond to all written billing complaints from Subscribers within thirty (30) days.
(15) Billing Refunds. Refunds to Subscribers will be issued no later than:
15.1. The earlier of the Subscriber's next billing cycle following resolution of the refund request, or thirty (30) days; or
15.2. The date of return of all equipment to Franchisee, if Cable service has been terminated.
(16) Credits for Cable Service. Credits for Cable service will be issued no later than the Subscriber's next billing cycle after the determination that the credit is warranted.
(17) Disconnection/Downgrades.
17.1. A Subscriber may terminate service at any time.
17.2. A Franchisee will promptly disconnect from the Franchisee's Cable system or downgrade any Subscriber who so requests. No charges for service may be made after the Subscriber requests disconnection. No period of notice before voluntary termination or downgrade of Cable service may be required of Subscribers by any Franchisee. There will be no charge for disconnection, except for the collection fee authorized by state law, and any downgrade charges will conform to applicable law.
(18) Security Deposit. Any security deposit and/or other funds due a Subscriber that disconnects or downgrades service will be returned to the Subscriber within thirty (30) days or in the next billing cycle, whichever is later, from the date disconnection or downgrade was requested except in cases where the Subscriber does not permit the Franchisee to recover its equipment, in which case the amounts owed will be paid to Subscribers within thirty (30) days of the date the equipment was recovered, or in the next billing cycle, whichever is later.
(19) Disconnection due to Nonpayment.
19.1. A Franchisee may not disconnect a Subscriber's Cable service for nonpayment unless:
19.1.1. The Subscriber is delinquent in payment for Cable service;
19.1.2. A separate, written notice of impending disconnection, postage prepaid, has been sent to the Subscriber at least twenty (20) days before the date on which service may be disconnected, at the premises where the Subscriber requests billing, which notice must identify the names and address of the Subscriber whose account is delinquent, state the date by which disconnection may occur if payment is not made, and the amount the Subscriber must pay to avoid disconnection, and a telephone number of a representative of the Franchisee who can provide additional information concerning and handle complaints or initiate an investigation concerning the services and charges in question;
19.1.3. The Subscriber fails to pay the amounts owed to avoid disconnection by the date of disconnection: and
19.1.4. No pending inquiry exists regarding the bill to which Franchisee has not responded in writing.
19.2. If the Subscriber pays all amounts due, including late charges, before the date scheduled for disconnection, the Franchisee will not disconnect service. Service may only be terminated on days in which the customer can reach a representative of the Franchisee either in person or by telephone.
19.3. After disconnection (except as noted below), upon payment by the Subscriber in full of all proper fees or charges, including the payment of the reconnection charge, if any, the Franchisee will promptly reinstate service.
(20) Immediate Disconnection. A Franchisee may immediately disconnect a Subscriber if:
20.1. The Subscriber is damaging, destroying, or unlawfully tampering with or has damaged or destroyed or unlawfully tampered with the Franchisee's Cable System;
20.2. The Subscriber is not authorized to receive a service, and is facilitating, aiding or abetting the unauthorized receipt of service by others; or
20.3. Subscriber-installed or attached equipment is resulting in signal leakage that is in violation of FCC rules.
20.4. After disconnection, the Franchisee will restore service after the Subscriber provides adequate assurance that it has ceased the practices that led to disconnection, and paid all proper fees and charges, including any reconnect fees and all amounts owed the Franchisee for damage to its Cable system or equipment. Provided that, no reconnection fee may be imposed on a Subscriber disconnected pursuant to this article if the leakage was the result of the Franchisee's acts or omissions; or in any case unless the Franchisee notifies the Subscriber of the leakage at least three (3) business days in advance of disconnection, and the Subscriber has failed to correct the leakage within that time.
(21) Franchisee's Property. Except as applicable law may otherwise provide, a Franchisee may remove its property from a Subscriber's premises within thirty (30) days of the termination of service. If a Franchisee fails to remove its property in that period, the property will be deemed abandoned unless the Franchisee has been denied access to the Subscriber's premises, or the Franchisee has a continuing right to occupy the premises under applicable law.
(22) Deposits. A Franchisee may require a reasonable, non-discriminatory deposit on equipment provided to Subscribers. Deposits will be placed in an interest-bearing account, and the Franchisee will return the deposit, plus interest earned to the date the deposit is returned to the Subscriber, less any amount the Franchisee can demonstrate should be deducted for damage to such equipment.
(23) Parental Control Option. Without limiting a Franchisee's obligations under Federal law, a Franchisee must provide parental control devices at no charge to all Subscribers who request them that enable the Subscriber to block the video and audio portion of any Channel or Channels of programming.
(24) Penalties.
Pursuant to California Government Code § 53088.2, and any successor statute or regulation, penalties will be assessed against a Franchisee for any breach of Sections 1-23 of these customers service standards.
(25) Notwithstanding the requirements of this article, the City Manager is authorized to relieve a Franchisee of its obligations under this article if:
25.1. Franchisee shows that there is an alternative standard that is substantially similar to that established by this article;
25.2. In light of the number of customers served by a Franchisee, the requirements of this Article are, in the City Manager's sole discretion, unduly burdensome and there is an alternative way to serve the same interest.
APPLICATION FOR OVS FRANCHISE
(1) Please provide the following information on a separate attachment:
(a) The name and address of the Applicant.
(b) Identify who owns and controls the Applicant. Your answer should list the names and addresses of the ten (10) largest holders of an ownership interest in the Applicant, the names and addresses of all Persons in the Applicant's direct ownership chain, showing their relation to one another. If there are contracts for the management and operation of the OVS, or arrangements for use of the OVS by an Affiliate, the entities involved and their ownership, and their relationship to the Applicant should be described.
(2) Please provide information sufficient to show that you have the technical resources to construct and maintain the proposed OVS. Identify the companies and personnel that will be involved in the construction and maintenance, and references for the entities identified.
(3) Please check the appropriate box.
| Yes | No | |
| • | • | Is Applicant willing to comply with the provisions of the City Code and other applicable laws; and to comply with such requirements of an OVS Agreement as the City may lawfully require? |
| • | • | Does Applicant, or its Affiliates hold a Cable system Franchise for the City, or have a pending request a Cable system Franchise (whether a initial or renewal Franchise, or Transfer request)? |
| • | • | Has Applicant had a request for cable or OVS Franchise denied by the City? |
| • | • | If so, did the denial occur, or was a challenge to the denial resolved adversely to Applicant, in the last 36 months? |
| • | • | Has Applicant had cable or OVS Franchise revoked by the City? |
| • | • | If so, did the Revocation occur, or was a challenge to the Revocation resolved adversely to Applicant, in the last 36 months? |
| • | • | Does Applicant must have the necessary authority under California and federal law to operate an OVS? (If yes, please provide proof of the authorization). |
| • | • | During the ten (10) years preceding the submission of the application, was Applicant found guilty of violating any consumer protection laws, or laws prohibiting anticompetitive acts, fraud, racketeering, or other similar conduct? |
| • | • | Does an elected official of the City hold a controlling interest in the Applicant or an Affiliate of the Applicant? |
In any case where the answer to a question was "yes," please provide a detailed explanation of your answer.
(4) Please provide a statement prepared by a certified public accountant showing that Applicant has the financial resources necessary to construct and operate the OVS as proposed.
(5) Please identify the area of the City that will be served by the OVS, with accompanying maps.
(6) Provide a schedule for construction of the OVS, including an estimate of plant mileage and its location; whether or not an institutional network will be constructed; information on the availability of space in conduits including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities; and a description, where appropriate, of how services will be converted from existing facilities to new facilities.
(7) Describe in detail the Channels, facilities and other support you propose to provide for public, educational and government use of the system.
The undersigned hereby certifies the truth and accuracy of the information in the Application, and all attachments thereto, acknowledges the enforceability of Application commitments, and certifies that the Application meets all requirements of applicable law.
FOR: ______________________
BY ________________________
ITS________________________
Subscribed and sworn before me this_____day of_____, ______________.
Chapter 5.21 STATE VIDEO SERVICE FRANCHISES
5.21.010 General provisions.
(A) Purpose.
This section is intended to be applicable to state franchise holders who have been awarded a state video franchise under the California Public Utilities Code section 5800 et seq. (the Digital Infrastructure and Video Competition Act of 2006 ["DIVCA"]), to serve any location(s) within the incorporated boundaries of the city. It is the purpose of this chapter to implement within the incorporated boundaries of the city the provisions of DIVCA and the rules of the California Public Utilities Commission promulgated thereunder that are applicable to a "local franchising entity" or a "local entity" as defined in DIVCA.
(B) Rights Reserved.
(1) The rights reserved to the city under this Chapter 5.21 are in addition to all other rights of the city, whether reserved by this Chapter 5.21 or authorized by law, and no action, proceeding or exercise of a right shall affect any other rights which may be held by the city.
(2) Except as otherwise provided by DIVCA, a state franchise shall not include, or be a substitute for:
(a) Compliance with generally applicable requirements for the privilege of transacting and carrying on a business within the city, including, but not limited to, compliance with the conditions that the city may establish before facilities may be constructed for, or providing, non-video services;
(b) Any permit or authorization required in connection with operations on or in public rights-of-way or public property, including, but not limited to, encroachment permits, street work permits, pole attachment permits and street cut permits; and
(c) Any permit, agreement or authorization for occupying any other property of the city or any private person to which access is not specifically granted by the state franchise.
(3) Except as otherwise provided in DIVCA, a state franchise shall not relieve a state franchisee of its duty to comply with all laws, including the ordinances, resolutions, rules, regulations, and other laws of the city, and every state franchisee shall comply with the same.
(C) Compliance.
Nothing contained in this chapter shall ever be construed so as to exempt a state franchise holder from compliance with all ordinances, rules or regulations of the city now in effect or which may be hereafter adopted which are consistent with this section or California Public Utilities Code Section 5800 et seq.
5.21.020 Definitions.
(A) Definitions Generally—Interpretation of Language.
For purposes of this chapter, the following terms, phrases, words, and their derivations shall have the meaning given in this section. Unless otherwise expressly stated, words not defined in this chapter shall be given the meaning set forth in Chapter 5.20 of the American Canyon Municipal Code as may be amended from time to time, unless the context indicates otherwise. Words not defined in this section or Chapter 5.20 of the American Canyon Municipal Code shall have the same meaning as established in (1) DIVCA, and if not defined therein, (2) Commission rules implementing DIVCA, and if not defined therein, (3) Title VI of Title 47 of the Communications Act of 1934, as amended, 47 USC Section 521 et seq., and if not defined therein, (4) their common and ordinary meaning. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and "including" and "include" are not limiting. The word "shall" and "will" are always mandatory. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.
(1) "Access," "PEG access," "PEG use," or "PEG" means the availability of a cable or state franchise holder's system for public, educational, or governmental use by various agencies, institutions, organizations, groups, and individuals, including the city and its designated access providers, to acquire, create, and distribute programming not under a state franchise holder's editorial control.
(a) "Public access" or "public use" means access where organizations, groups, or individual members of the general public, on a non-discriminatory basis, are the primary or designated programmers or users having editorial control over their communications;
(b) "Education access" or "education use" means access where accredited educational institutions are the primary or designated programmers or users having editorial control over their communications;
(c) "Government access" or "government use" means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.
(2) "Gross revenues" means all revenues actually received by the holder of a state franchise that are derived from the operation of the holder's network to provide cable service or video service within the incorporated areas of the city, subject to the specifications of California Public Utilities Code Section 5860.
(3) "State franchise holder" or "state franchisee" means a cable operator or video service provider that has been issued a franchise by the California Public Utilities Commission to provide cable service or video service, as those terms are defined in California Public Utilities Code Section 5830, within any portion of the incorporated limits of the city.
5.21.030 Franchise fees.
(A) State Franchise Fees. Any state franchise holder operating within the incorporated areas of the city shall pay to the city a state franchise fee equal to five percent of gross revenues.
(B) Payment of Franchise Fees. The state franchise fee required pursuant to subsection A of this section shall each be paid quarterly, in a manner consistent with California Public Utilities Code Section 5860. The state franchise holder shall deliver to the city, by check or other means, which shall be agreed to by the city, a separate payment for the state franchise fee not later than forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the payment was calculated, and shall include such additional information on the appropriate form as designated by the city.
(C) Audits. The city may audit the business records of the holder of a state franchise in a manner consistent with California Public Utilities Code Section 5860(i).
(D) Late Payments. In the event a state franchise holder fails to make payments required by this section on or before the due dates specified in this section, the city shall impose a late charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.
(E) Lease of City-Owned Network. In the event a state franchise holder leases access to a network owned by the city, the city may set a franchise fee for access to the city-owned network separate and apart from the franchise fee charged to state franchise holders pursuant to subsection A of this section, which fee shall otherwise be payable in accordance with the procedures established by this section.
5.21.040 Customer service.
(A) Customer Service Standards. A state franchise holder shall comply with Sections 53055, 53055.2, and 53088.2 of the California Government Code; the FCC customer service and notice standards set forth in Sections 76.309, 76.1602, 76.1603, and 76.1619 of Title 47 of the Code of Federal Regulations; Section 637.5 of the California Penal Code; the privacy standards of Section 551 of Title 47 of the United States Code; and all other applicable state and federal customer service and consumer protection standards pertaining to the provision of video service, include any such standards hereafter adopted. In case of a conflict, the stricter standard shall apply. All customer service and consumer protection standards under this paragraph shall be interpreted and applied to accommodate newer or different technologies while meeting or exceeding the goals of the standards.
(B) Penalties for Violations of Standards. The city shall enforce the compliance of state franchisees with respect to the state and federal customer service and consumer protection standards set forth in subsection A. The city will provide a state franchisee with a written notice of any material breaches of applicable customer service or consumer protection standards, and will allow the state franchisee thirty days from the receipt of the notice to remedy the specified material breach. Material breaches not remedied within the thirty-day time period will be subject to the following penalties to be imposed by the city:
(1) For the first occurrence of a material breach, a fine of five hundred dollars may be imposed for each day the violation remains in effect, not to exceed one thousand five hundred dollars for each violation.
(2) For a second material breach of the same nature within twelve months, a fine of one thousand dollars may be imposed for each day the violation remains in effect, not to exceed three thousand dollars for each violation.
(3) For a third material breach of the same nature within twelve months, a fine of two thousand five hundred dollars may be imposed for each day the violation remains in effect, not to exceed seven thousand five hundred dollars for each violation.
(C) Any penalties imposed by the city shall be imposed in a manner consistent with California Public Utilities Code Section 5900.
5.21.050 Permits and construction.
(A) Except as expressly provided in this chapter, the provisions of Sections 5.20.130 and 5.20.140 shall apply to all work performed by or on behalf of a state franchise holder on any city public rights-of-way, public property, or city easement as those terms are defined in Chapter 5.20 of the American Canyon Municipal Code.
(B) Permits. Prior to commencing any work for which a permit is required by subsection A, a state franchise holder shall apply for and obtain a permit in accordance with the provisions of the subsection and shall comply with all other applicable laws and regulations, including but not limited to all applicable requirements of Division 13 of the California Public Resources Code, Section 21000, et seq. (the California Environmental Quality Act).
(C) The city manager or designee shall either approve or deny a state franchise holder's application for any permit required under subsection A of this section within sixty days of receiving a completed permit application from the state franchise holder.
(D) If the city manager or designee denies a state franchise holder's application for a permit, the city manager or designee shall, at the time of notifying the applicant of denial, furnish to the applicant a detailed explanation of the reason or reasons for the denial.
(E) A state franchise holder that has been denied a permit by final decision of the city manager or designee may appeal the denial to the city council. Upon receiving a notice of appeal, the city council shall take one of the following actions:
(1) Affirm the action of the city manager or designee without any further hearing; or
(2) Refer the matter back to the city manager or designee for further review with or without instructions; or
(3) Set the matter for a de novo hearing before the city council.
(F) In rendering its decision on the appeal, the city council shall not hear or consider any argument or evidence of any kind other than the record of the matter received from the city manager or designee unless the city council is itself conducting a public hearing on the matter.
(G) Notification to Residents Regarding Construction or Maintenance. Prior to any construction, rebuild, or upgrade of a cable or video system, a state franchise holder shall establish procedures to notify city residents in the impacted area of construction schedules and activities. Such notices must be provided in the predominant languages spoken by those persons who work and/or reside in the impacted area. The notices shall be provided to the city manager or designee for review and approval no later than twenty days before commencement of construction, rebuild, or upgrade activities.
(H) At a minimum, the notice required in subsection G shall be provided by the state franchise holder to impacted residents and occupants in the construction area not less than forty-eight hours prior to the planned construction. The state franchise holder shall provide additional notice to the persons described in subsection G on the day of construction. The notice may be in the form of door hangers that indicate, at a minimum, the dates and times of construction and the name and telephone number of a state franchise holder contact.
(I) The state franchise holder shall provide notice at least twenty days prior to entering private property or public ways or public easements adjacent to or on such private property, public ways, or public easements, and provide a second notice three days prior to entering such property.
(1) Should there be above ground or underground installations (excluding aerial cable lines utilizing existing poles and cable paths) which will affect the private property, such notice shall be in writing and shall contain specific information regarding any above ground or underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths) which shall affect the private property.
(2) To the extent practicable, aboveground or underground equipment placed on private property shall be placed at the location requested by the property owner. A state franchise holder shall provide the private property owner with at least twenty days advance written notice of its plans to install such equipment, and shall obtain express written consent, in the form of a recorded easement agreement, from the private property owner before installing its appurtenances. The state franchise holder shall notify the property owner, in writing, that the property owner is not obligated to agree to the placement on their property or to enter into an easement agreement with the state franchise holder. Should property owner notify the state franchise holder of objection to placement of any such above-ground or underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), the state franchise holder shall confer with the city public works department regarding appropriate location and placement of such appurtenances.
(J) In addition to any other notice of proposed entry required under this subsection, a state franchise holder's personnel shall make a reasonable attempt to give personal notice to residents immediately preceding entry on private property or public ways or public easements adjacent to or on such private property.
(K) Identification Required. A state franchise holder, its employees, agents, contractors, and subcontractors shall be properly identified as agents of the state franchise holder prior to and during entry on private and public property. Identification shall include the name and telephone number of the state franchise holder on all trucks and vehicles used by installation personnel.
(L) Restoration of Private and Public Property. After performance of work, the state franchise holder shall restore such private and public property to a condition equal to or better than its condition prior to construction. Any disturbance of landscaping, fencing, or other improvements upon private or public property shall, at the sole expense of the state franchise holder, be promptly repaired or restored (including replacement of such valuables as shrubbery and fencing) to the reasonable satisfaction of the property owner, in addition to the furnishing of camouflage plants on public property.
(M) Reports to the city clerk, city of American Canyon. Each state franchise holder, within sixty days after the expiration of each calendar year, shall file a report with the city clerk, city of American Canyon, which shall contain a street and highway map or maps of any convenient scale on which shall be plotted the location of the entire transmission and distribution system or systems covered by the report as of the last day of the calendar year, with the system or systems located in city highways indicated by distinctive coloration or symbols.
5.21.060 Emergency alert.
(A) Emergency Alert Systems. Each state franchise holder shall comply with the emergency alert system requirements of the Federal Communications Commission in order that emergency messages may be distributed over the state franchise holder's network.
5.21.070 Public, educational and government access channel capacity, interconnection, and signal carriage.
(A) PEG Channel Capacity.
(1) A state franchisee that has been authorized by the California Public Utilities Commission to provide video service in the city shall designate and activate three PEG channels within three months from the date that the city requests that the state franchisee designate and activate these PEG channels. However, this three-month period shall be tolled for such a period, and only for such a period, during which the state franchisee's ability to designate or provide such PEG capacity is technically infeasible, as provided in Section 5870(a) of the California Public Utilities Code.
(2) A state franchisee shall provide an additional PEG channel when the standards set forth in Section 5870(d) of the California Public Utilities Code are satisfied by the city or any entity designated by the city to manage one or more of the PEG channels.
(B) PEG Support.
(1) Amount of PEG Support Fee. Any state franchise holder operating within the city shall pay to the city a PEG fee equal to one percent of gross revenues.
(2) The PEG support fee shall be used for PEG purposes that are consistent with state and federal law.
(3) A state franchisee shall remit the PEG support fee to the city quarterly, within forty-five days after the end of each calendar quarter. Each payment made shall be accompanied by a report, detailing how the PEG support fee was calculated.
(4) To the extent that there is no conflict under state law, if a state franchisee fails to pay the PEG support fee when due, or underpays the proper amount due, the state franchisee shall pay a late payment charge at the rate per year equal to the highest prime lending rate during the period of delinquency, plus one percent.
(C) PEG Carriage and Interconnection.
(1) State franchisees shall ensure that all PEG channels are receivable by all subscribers, whether they receive digital or analog service, or a combination thereof, without the need for any equipment other than that needed to receive the lowest cost tier of service. PEG access capacity provided by a state franchisee shall be of similar quality and functionality to that offered by commercial channels (unless the PEG signal is provided to the state franchisee at a lower quality or with less functionality), shall be capable of carrying a National Television System Committee (NTSC) quality television signal, and shall be carried on the state franchisee's lowest cost tier of service. To the extend feasible, the PEG channels shall not be separated numerically from other channels carried on the lowest cost tier of service and the channel numbers for the PEG channels shall be the same channel numbers used by any incumbent cable operator, unless prohibited by federal law. After the initial designation of the PEG channel numbers, the channel numbers shall not be changed without the agreement of the city unless federal law requires the change.
(2) The holder of a state franchise and an incumbent cable operator shall negotiate in good faith to interconnect their networks for the purpose of providing PEG programming. If a state franchisee and an incumbent cable operator cannot reach a mutually acceptable interconnection agreement for PEG carriage, the city shall require the incumbent cable operator to allow the state franchisee to interconnect its network with the incumbent cable operator's network at a technically feasible point on the state franchisee's network as identified by the state franchisee. If no technically feasible point of interconnection is available, the state franchisee shall make interconnection available to each PEG channel originator programming a channel in the city and shall provide the facilities necessary for the interconnection. The cost of any interconnection shall be borne by the state franchisee requesting the interconnection unless otherwise agreed to by the parties.
5.21.080 Notices.
(A) Each state franchise holder or applicant for a state franchise shall file with the city a copy of all applications or notices that the state franchise holder or applicant is required to file with the California Public Utilities Commission.
(B) Unless otherwise specified in this section, all notices or other documentation that a state franchise holder is required to provide to the city under this section or the California Public Utilities Code shall be provided to both the city manager and the city staff person in charge of cable and telecommunications, or their successors or designees.
Chapter 5.60 CAREGIVER PERMIT ORDINANCE
5.60.010 Code adoption.
The city of American Canyon adopts all those certain documents marked and designated, as Chapter 5.60 to Title 5 of the Napa County Code of Ordinances relating to requirements for elders and or dependent adult caregivers. The documents identified in this section are adopted in their entirety. A copy of the adopted Chapter 5.60 to Title 5 of the Napa County Code of Ordinances relating to requirements for elders and or dependent adult caregivers shall be kept on file in the office of the community development director for use and examination by members of the public.
5.60.020 Code amendments.
(A) Section 5.60.010 is revised to add the following:
"Multi-generational family household" means a household whose members span three or more generations.
(B) Section 5.60.020(D)(1) does not apply to a multi-generational family household where there is no consideration or compensation provided for the care of an elder or dependent adult.
Chapter 5.70 HAZARD PAY FOR GROCERY WORKERS
5.70.010 Purpose.
This chapter aims to protect and promote the public health, safety, and welfare during the novel coronavirus disease of 2019 (COVID-19) emergency by requiring grocery stores to provide hazard pay for grocery workers performing work in the city of American Canyon. Some grocery stores have voluntarily provided additional compensation, but others have not. Requiring competing grocery stores to provide hazard pay will ensure that grocery workers are compensated for the risks of working during a pandemic. Grocery workers face increased risk of catching or spreading COVID-19 because the nature of their work involves close contact with the public and co-workers, including individuals who are not showing symptoms of COVID-19 but who can spread the disease. Hazard pay also ensures the retention of these essential grocery store workers who are on the frontlines of this pandemic providing essential services and who are needed throughout the duration of the COVID-19 emergency.
5.70.020 Short title.
This chapter shall constitute the "Hazard Pay for Grocery Workers Ordinance" and may be cited as such.
5.70.030 Definitions.
The following terms shall have the following meanings:
"Adverse action" means reducing the compensation to a grocery worker, garnishing gratuities, temporarily or permanently denying or limiting access to work, incentives, or bonuses, offering less desirable work, demoting, terminating, deactivating, putting a grocery worker on hold status, failing to rehire after a seasonal interruption of work, threatening, penalizing, retaliating, or otherwise discriminating against a covered employee. "Adverse action" also encompasses any action by the covered employer or a person acting on the covered employer's behalf that would dissuade a covered employee from exercising any right afforded by this chapter.
"Baseline compensation" means the hourly compensation paid to covered employees as of the effective date of this chapter after subtracting any premium compensation used to compensate covered employees for working during the pandemic. Baseline compensation does not include hazard pay owed under this chapter, but does include premium compensation unrelated to the pandemic, such as holiday premiums paid for performing work during a holiday.
"City" means the city of American Canyon.
"Covered employee" means a grocery worker who is entitled to hazard pay pursuant to this chapter.
"Covered employer" means any entity that employs over three hundred grocery workers nationwide, regardless of whether the entity owns or operates grocery stores.
"Grocery worker" means a worker employed to work at a grocery store. Grocery worker does not include managers, supervisors, or independent contractors.
"Grocery store" means an establishment primarily engaged in selling a range of foods including fresh, frozen or canned meats, fish and poultry, fruits and vegetables, bread and/or grain products and dairy products, including, but not limited to, grocery stores, markets, or supermarkets; or produce stores, cheese, uncooked meat/butcher shops and fish markets.
"Hazard pay" means additional compensation owed to a grocery worker that is separate from baseline compensation and does not include tips earned from customers.
5.70.040 Applicability.
(A) For purposes of this chapter, covered employers are limited to those who employ two hundred or more grocery workers in the state of California.
(B) For purposes of this chapter, the number of grocery workers employed by an employer is the total number of grocery workers who worked for compensation during the two-week period immediately preceding the effective date of this chapter.
(C) Covered employers shall provide the hazard pay required by this chapter to any covered employee in the city of American Canyon until one hundred twenty days from the effective date of this chapter.
(D) Unless extended by the city council, the hazard pay requirement set forth in this chapter shall only remain in effect for a limited period of one hundred twenty days from the effective date of this chapter.
5.70.050 Hazard pay requirement.
(A) A covered employer shall provide grocery workers with hazard pay consisting of an additional five dollars per hour above baseline compensation for each hour worked within the city of American Canyon.
(B) All compensation above baseline compensation shall be credited against the hazard pay requirement, as follows:
(1) A covered employer that is already providing additional compensation above baseline compensation equivalent to hazard pay, on an ongoing basis prior to the effective date of this chapter may use the hourly rate of that additional compensation to offset the amount due under this chapter (e.g., a covered employer who is already paying two dollars per hour above baseline compensation owes an additional three dollars per hour in hazard pay).
(2) Health insurance premiums may be considered hazard pay only where those premiums were not a part of baseline compensation and only where the cost of the premium can be directly attributed to the particular employee whose hazard pay is offset.
(3) The covered employer bears the burden of proof that the additional compensation is hazard pay and not baseline compensation. No covered employer shall be credited prospectively for any past payments. No covered employer shall be credited for any hourly premiums already owed to covered employees, such as, but not limited to, holiday premiums, however there shall be a rebuttable presumption that compensation paid by a covered employer at a particular grocery store in January 2020 was baseline compensation for purposes of calculating hazard pay at that particular grocery store. Nothing herein shall be interpreted to prohibit any employer from paying more than five dollars per hour in hazard pay.
5.70.060 Notice of rights.
(A) A covered employer shall provide covered grocery workers with a written notice of rights established by this chapter. The notice of rights shall provide information on:
(1) The right to hazard pay guaranteed by this chapter;
(2) The right to be protected from retaliation for exercising or assisting in the exercise of the rights set forth in this chapter; and
(3) The right to bring a civil action for a violation of the requirements of this chapter, including a covered employer's denial of hazard pay as required by this chapter and/or retaliation against a grocery worker or other person or entity exercising or assisting in the exercise of the rights set forth in this chapter.
(B) A covered employer shall provide the written notice of rights by posting in the same conspicuous location used for other mandatory employment postings such as the state of California Wage Orders and the Federal Family Medical Leave Act and shall also provide the written notice of rights in an electronic format that is readily accessible to all employees. The notice of rights shall be made available in English and Spanish and any other language that the covered employer knows or has reason to know is the primary language of the covered employees.
5.70.070 Recordkeeping.
(A) Covered employer shall retain records that document compliance with this chapter for covered employees for a period of two years after the date of this chapter.
(B) If a covered employer fails to retain adequate records, there shall be a presumption, rebuttable by clear and convincing evidence, that the covered employer violated this chapter for each covered employee for whom records were not retained.
5.70.080 Retaliation prohibited.
No covered employer shall discharge, reduce compensation, take adverse action against or otherwise retaliate against any grocery worker for exercising or assisting in the exercise of rights under this chapter by any lawful means.
5.70.090 Remedies.
(A) Any person aggrieved by a violation of this chapter, any entity a member of which is aggrieved by a violation of this chapter, or any other person or entity acting on behalf of the public as provided for under applicable state law, may bring a civil action in a court of competent jurisdiction against the employer or other person violating this chapter and, upon prevailing, shall be awarded reasonable attorneys' fees and costs and shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation:
(1) Reinstatement, payment of back wages wrongfully withheld, liquidated damages, civil penalties, penalties payable to aggrieved parties, fines, the payment of an additional sum as a civil penalty in the amount of fifty dollars to each covered employee whose rights under this chapter were violated for each day or portion thereof that the violation occurred or continued, and fines imposed pursuant to other provisions of this code or state law.
(2) Interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date the wages are paid in full.
(B) A covered employer found to have retaliated in violation of this chapter shall be subject to any additional remedy at law or equity including, but not limited to, front pay in lieu of reinstatement with full payment of unpaid compensation plus interest and punitive damages in an additional amount of up to twice the unpaid compensation.
5.70.100 Waiver through collective bargaining.
To the extent required or permitted by federal or state law, all or any portion of the applicable requirements of this chapter may be waived in a bona fide collective bargaining agreement, provided that such waiver is explicitly set forth in such agreement in clear and unambiguous terms. Any request to an individual employee by an employer to waive their rights under this chapter shall constitute a violation of this chapter.
5.70.110 Encouragement of more generous policies.
(A) Nothing in this chapter shall be construed to discourage or prohibit a covered employer from the adoption or retention of premium pay policies more generous than the one required herein.
(B) Nothing in this chapter shall be construed as diminishing the obligation of a covered employer to comply with any contract or other agreement providing more generous protections to a covered employee than required by this chapter.
5.70.120 Other legal requirements.
This chapter provides minimum requirements for hazard pay while working for a covered employer during the COVID-19 emergency and shall not be construed to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for higher hazard pay, or that extends other protections to grocery workers; and nothing in this chapter shall be interpreted or applied so as to create any power or duty in conflict with federal or state law. Nothing in this section shall be construed as restricting a grocery worker's right to pursue any other remedies at law or equity for violation of their rights.
5.70.130 Severability.
If any section, subsection, sentence, clause, phrase, or word of this chapter, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this chapter. The city council of the city of American Canyon hereby declares that it would have passed this chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this chapter or application thereof would be subsequently declared invalid or unconstitutional.