Bakersfield Municipal Code Ch. 5.06 Adult Entertainment Businesses

Sections: 5.06.010 Definitions. 5.06.020 Permits required. 5.06.030 Business permit application—Issuance—Fee. 5.06.040 Managerial permit application—Issuance—Fee. 5.06.050 Permit renewal. 5.06.060 Regulations. 5.06.062 Access provision. 5.06.064 Separation of patrons and performers. 5.06.066 Regulation of arcades. 5.06.068 Regulations nonexclusive. 5.06.070 Abatement. 5.06.080 Revocation. 5.06.090 Appeal.

• Editor’s Note: Prior Chapter 5.06, Adult Bookstores, previously codified herein, included portions of Ordinance Nos. 3217, 3040, 2934, 2926, 2921, 2598 and prior code Chapter 7.28.

Whenever used in this chapter, unless a different meaning clearly appears from the context, the words set forth in this section shall have the following meanings:

A. “Adult entertainment business” and “business” means any adult bookstore, adult motion picture arcade, adult mini-motion picture theater, adult motion picture theater or adult live entertainment theater standing alone or within an adult entertainment business.

B. “Adult bookstore” means any business selling or renting novelties, books, magazines, periodicals or other printed matter, photographs, films, motion pictures, slides, tapes, video cassettes, records or any other form of visual or audio representation twenty-five percent or more of the stock-in-trade on display within any such category, or total of any or all categories, being characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

C. “Adult motion picture arcade” and “arcade” means any business wherein coin or token-operated, or electronically, electrically, or mechanically controlled 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 one time, and where the dominant or predominant character or theme of the images so displayed is depiction of specified sexual activities or specified anatomical areas.

D. “Adult mini-motion picture theater” means any business with a capacity of more than five, but less than fifty persons where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are shown and material whose dominant or predominant character and theme is the depiction of specified sexual activities or specified anatomical areas for observation is shown on any ten or more days in any thirty consecutive day period.

E. “Adult motion picture theater” means any business with the capacity of fifty or more persons where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are shown and in which material whose dominant or predominant character and theme is the depiction of specified sexual activities or specified anatomical areas for observation is shown on any ten or more days in any thirty consecutive day period.

F. “Adult live entertainment theater’ means any business with the capacity of five or more persons where, for any form of consideration, live entertainment takes place on any ten or more days in any thirty consecutive day period.

G. “Harmful matter” shall have the same meaning and the same definition as the word is defined in Chapter 7.6 of Title 9 of Part I of the California Penal Code.

H. “Live adult entertainment” means any physical human body activity, whether performed or engaged in alone or with other persons, including but not limited to singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, in which the performer or performers expose to public view without opaque covering the genitals, vulva, pubis, pubic hair, natal cleft, buttocks, perineum, anus or anal region; or in which any female performer exposes to public view without opaque covering any portion of the breast at or below the upper edge of the areola thereof.

I. “Permit holder” means any person who holds a permit to operate and/or manage an adult entertainment business.

J. “Operate” means to own, lease (as lessor or lessee), rent (as landlord, tenant or agent for the purpose of representing a principal in the management, rental or operation of the property of such principal), manage, operate, conduct, direct, or be employed in an adult entertainment business.

K. “Person” means any individual, partnership, corporation or association of any nature whatsoever

L. “Specified anatomical areas” means and includes any of the following:

1. Less than complete and opaquely covered human genitals, pubic region, buttocks, anus, or female
breasts below a point above the top of the areola; or

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

M. “Specified sexual activities” means and includes any of the following:

1. The fondling or touching of human genitals, pubic regions, buttocks, anus, or female breasts; or

2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy; or

3. Masturbation, actual or simulated; or

4. Excretory functions as part of, or in connection with, any of the activities set forth in subsections M1-3.
(Ord. 3956 § 1, 2000; Ord. 3729 § 2, 1996; Ord. 3529 § 1, 1993; Ord. 3424 § 1, 1991; Ord. 3350 § 1, 1991)

A. No person shall own or operate an adult entertainment business in the city in violation of this chapter, or without having first procured and maintained a valid business permit from the city manager or designee. Only one permit per establishment need be obtained pursuant to this subsection.

B. Managerial permits are not required except to the extent that the business permit-holder desires various individuals to be licensed as manager. (Ord. 3529 § 1, 1993; Ord. 3424 § 1, 1991; Ord. 3350 § 1, 1991)

A. Applications for business permits under this section shall be made on forms to be furnished by the city manager or designee, shall be signed under penalty of perjury by the applicant and shall require the following information.

1. The full true name, current mailing address, title, current telephone number, date of birth, sex, driver’s
license number, and social security number of the applicant and of all persons who will manage the business
and all persons having a financial interest in the business, (except shareholders of a corporation);

2. The name, mailing address and location of the business;

3. The business tax certificate number of the business; and

4. Prior permits held, the dates held, whether such permits were ever revoked or suspended and the
reasons therefor.

B. The city manager or designee shall issue a permit within fifteen days of receipt of the application if he finds:

1. That the application is complete and truthful;

2. The business for which the application is made, and the building in which such business is to be
conducted, conform to all federal, state and local laws, including, but not limited to building codes and zoning
ordinances, and be accessible for inspection by city fire, police and building officials;

3. That a valid business tax certificate has been issued for this business;

4. That the applicant is eighteen years of age or older; and

5. That the applicant has not had a permit, issued under this section, revoked in the past three years,
unless the city manager finds that the reasons for such revocation are unrelated to this application. For the
purposes of this subsection, “applicant” includes all persons designated in subsection A., 1. of this section.

C. If the city manager or designee determine that the applicant has failed to meet any of the criteria of subsection B., above, he shall notify the applicant of the decision to deny the permit. Notice of such decision shall be sent in writing to the applicant at the mailing address set forth in the application, within fifteen days of submittal of the application. Failure to so notify the applicant within the allotted time or failure to make the findings set forth in subsection B. above within the allotted time shall be deemed a grant of the permit.

D. The applicant shall pay a nonrefundable fee not to exceed the cost of processing any such application and inspecting the business as set forth in Section 3.70.040. (Ord. 3529 § 1, 1993; Ord. 3424 § 1, 1991)

A. Applications for managerial permits under this section shall be made on forms to be furnished by the city manager or designee, shall be signed under penalty of perjury by the applicant and shall require the following information:

1. The full true name, current mailing address, title, current telephone number, date of birth, sex, driver’s
license number and social security number of the applicant;

2. The name, mailing address and location of the business;

3. The business tax certificate number of the business; and

4. Prior managerial permits held, the dates held, and whether such permits were ever revoked or
suspended and the reasons therefor.

B. The city manager or designee shall issue a permit within three days of receipt of the application if he finds:

1. That the application is complete and truthful;

2. That the applicant is eighteen years of age or older, and

3. That the applicant has not had a managerial permit, issued under this section, revoked in the past three
years, unless the city manager finds that the reasons for such revocation are unrelated to this application.

C. If the city manager or designee determine that the applicant has failed to meet any of the criteria of subsection B., above, he shall notify the applicant of the decision to deny the permit within three days. Notice of such decision shall be sent in writing to the applicant at the mailing address set forth in the application, within three days of submittal of the application. Failure to so notify the applicant within the allotted time or failure to make the findings set forth in subsection B., above, within the allotted time shall be deemed a grant of the permit.

D. The applicant shall pay a nonrefundable fee not to exceed the cost of processing any such application as set forth in Section 3.70.040.

E. At time of application, all applicants for a permit pursuant to this section shall submit two passport-size photographs taken within one month of application. (Ord. 3529 § 1, 1993; Ord. 3424 § 1, 1991)

A. All permits issued under this chapter shall remain in effect until December 31 of the calendar year of issue, unless earlier revoked.

B. Valid business permits which have neither expired nor been revoked shall be renewed by the city manager or designee upon payment of the fees set forth in subsection D. of Section 5.06.030.

C. Valid managerial permits which have neither expired nor been revoked shall be renewed by the city manager or designee upon payment of the fees set forth in subsection D. of Section 5.06.040.

D. Renewal by the city manager or designee shall not constitute an admission by the city that the permitted business or managerial employee is in compliance with state or local law at time of renewal. (Ord. 3529 § 1, 1993; Ord. 3424 § 1, 1991)

A. No adult entertainment business shall be operated unless one of the following persons is present on the premises whenever it is open for business:

1. The business permit-holder;

2. If the business permit-holder is a corporation, any of the corporation officers; or

3. If no person from subsection (A)(1) or (A)(2) of this section is present, then a person who possesses a
valid manager’s permit as issued by the city of Bakersfield.

B. Any adult motion picture arcade shall be operated in accordance with the following:

1. Any adult motion picture arcade for use in any adult entertainment business may be enclosed on three sides only and the open side shall be one hundred percent open and the visibility of the inside of the arcade shall not be otherwise obstructed. All adult motion picture or video arcades open to the public shall be visible from the primary entrance to the hallway or room in which the arcades are located. No license-holder shall cause, permit or suffer to exist any opening between any adult motion picture or video or live adult entertainment arcade.

2. Any adult live entertainment arcade for use in any adult entertainment business may be enclosed on three sides only and the open side shall be one hundred percent open and the visibility of the inside of the arcade shall not be otherwise obstructed. All adult live entertainment arcades open to the public shall be visible from the primary entrance to the hallway or room in which the arcades are located. There shall be a barrier of plexiglass or similar substance between the entertainer and the patron which shall have no single opening larger than one-half inch in diameter. No license-holder shall cause, permit, or suffer to exist any opening between any adult motion picture arcade.

3. No exterior door on the premises of any adult entertainment business shall be locked or barred during hours when such business is open to the public. Doors on any adult motion picture arcade, adult mini-motion picture theater, and adult live entertainment theater which come into existence within an adult entertainment business after the effective date of this chapter are strictly prohibited.

C. No person shall enter, be, or remain in any part of an adult entertainment business while in the possession of, consuming, using, or under the influence of any alcoholic beverage, or any drug; and no permit-holder who, with knowledge that a person is in the possession of, consuming, using or under the influence of any alcoholic beverage or any drug, or who fails to exercise reasonable care in ascertaining that a person is in the possession of, consuming, using or under the influence of any alcoholic beverage or any drug, shall permit such person to enter, be, or remain on the premises.

D. No adult entertainment business shall operate, and no permit-holder shall permit such business to operate, at any time unless there is displayed in a location clearly visible to the public a valid business permit to so operate.

E. Any business or managerial permit issued pursuant to this chapter shall be nontransferable, and shall be valid only as to the applicant and location provided on the application for such permit.

F. No business or managerial permit shall be issued for, or used in more than one adult entertainment business.

G. No harmful matter shall be displayed so as to be visible from any street, sidewalk, parking area or other area outside the premises.

H. No person under the age of eighteen years shall enter, be, or remain in any part of an adult entertainment business, and no permit-holder who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, shall permit such person to enter, be, or remain on the premises of an adult entertainment business.

I. Anyone performing live adult entertainment shall remain no less than six feet away from patrons, customers or members of the audience of the business.

J. No permit-holder shall permit any physical contact between a performer of live adult entertainment and any patron, customer or member of the audience of the adult entertainment business.

K. No adult entertainment business shall be conducted or carried on between the hours of two a.m. and six a.m. of any day. (Ord. 3956 § 2, 2000; Ord. 3729 § 3, 1996; Ord. 3529 § 1, 1993; Ord. 3424 § 1, 1991; Ord. 3350 § 1, 1991)

A. The operator of an adult entertainment business shall not permit any doors, except doors to restrooms and toilet stalls in restrooms on the premises, to be locked or barred during business hours and, in addition, the operator shall be responsible for seeing that any room or area on the premises shall be readily accessible at all times and shall be open to view in its entirety for inspection by any law enforcement officer. An applicant/owner/ manager/licensee shall permit law enforcement officers to inspect the premises of the adult business for purpose of ensuring compliance with the law at any time the premises are occupied or open for business. Such inspections shall be conducted in a reasonable manner and shall only be as frequent as necessary.

B. A sign setting forth the following information shall be maintained in a conspicuous location in every arcade, theater and room open to the public within the adult business:

“This area is subject to inspection by city police or other city officials at anytime. Patrons have no expectation of privacy in this or any other area of this establishment.”

All such signs shall be at least eight inches by ten inches in size and be printed with dark ink upon a light contrasting background with letters at least one-half inch in height.

C. The restrooms shall be free from any adult material. Restrooms shall not contain televisions, monitors or other motion picture or video projections, projectors, recording or reproduction equipment.

D. This section only applies to the operation of an adult bookstore, adult motion picture theater, adult mini- motion picture theater, adult motion picture arcade, or adult live entertainment theater which comes into existence after the effective date of this ordinance, or to existing adult entertainment businesses which relocate or undergo interior remodeling. (Ord. 3956 § 3, 2000)

A. No person shall perform adult live entertainment except upon a permanently fixed stage which is at least eighteen inches above the level of the floor, separated by a distance of at least six feet from the nearest area occupied by patrons, and surrounded with a three foot barrier. No patron shall be permitted within six feet of the stage while the stage is occupied by a performer.

B. While patrons are present at the establishment, they shall not be allowed to directly touch, fondle, or caress, as those terms are defined in Kev, Inc. V. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), the performers while they are performing. This prohibition does not extend to incidental touching, i.e., non-intentional touching as defined in Kev. Patrons shall be advised of the separation and no-touching requirements by signs placed on the barrier and, if necessary, by employees of the establishment.

C. The adult business shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainers’ use.

D. If patrons wish to tip performers, tips shall be placed in receptacles which shall be located at least six feet from the performance, performer, and the performing area. Patrons shall not throw tips to performers, hand tips directly to the performers, or place tips in the performers’ costumes.

E. This section only applies to the operation of an adult bookstore, adult motion picture theater, adult mini- motion picture theater, adult motion picture arcade, or adult live entertainment theater which comes into existence after the effective date of the ordinance codified in this chapter, or to existing adult entertainment businesses which relocate or undergo interior remodeling. (Ord. 3956 § 4, 2000)

A. The interior of the business which maintains or operates arcades shall be configured in such a manner that there is an unobstructed view from a manager’s station of the entire interior of every arcade located on the premises of the business. If the business has two or more manager stations designated, then the business shall be configured in such a manner that there is an unobstructed view of the entire interior of each arcade located on the premises from at least one of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.

B. No partially nor fully enclosed or concealed arcade shall be constructed, maintained or operated. No door, screen, curtain or other covering may be attached or installed on any arcade. The view into each arcade from the manager’s station may not be blocked or obstructed by merchandise, display racks, equipment or other materials at any time. The unobstructed view must be possible without the assistance of mirrors or other viewing aids.

C. No openings or windows of any size or description shall be permitted between arcades. No holes, commonly known as “glory holes,” shall be permitted in the walls or partition of an adult arcade.

D. The floors, seats, walls, and other interior portions of all arcades shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine or semen in any arcades shall be evidence of improper maintenance and inadequate sanitary controls.

E. This section does not apply to restrooms which must be clearly designated as such. (Ord. 3956 § 5, 2000)

The regulations set forth in this chapter are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of adult entertainment businesses set forth elsewhere in this code. (Ord. 3956 § 6, 2000)

Any adult entertainment business operated contrary to the provisions of this chapter or local, state or federal law, is unlawful and a public nuisance. The city attorney may, in addition to or in lieu of prosecuting a criminal action under this chapter and Section 1.40.010 or revoking the permit to operate, commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof in the manner provided by law, and shall take such other steps and shall apply to such other court or courts as may have jurisdiction to grant such relief as will abate or remove such adult entertainment business and restrain and enjoin any person from operating, conducting, or maintaining an adult entertainment business contrary to the provisions of this chapter. (Ord. 3529 § 1, 1993; Ord. 3424 § 1, 1991; Ord. 3350 § 1, 1991)

Any permit issued pursuant to this chapter shall be revoked by the city manager or designee whenever he or she finds that material misrepresentations were made on the application. The revocation shall take effect, absent an appeal, ten days from the date the notice of revocation is deposited in the United States mail, addressed to the permittee, at the address provided on the application. (Ord. 3529 § 1, 1993; Ord. 3424 § 1, 1991; Ord. 3350 § 1, 1991)

A. Should the applicant be dissatisfied with the decision of the city manager or designee to deny or to revoke a permit, then said applicant may, no later than ten days after notice of such decision is deposited in the United States mail, addressed to the applicant or permittee at the address provided on the application, make written objection to the city council setting forth the grounds for dissatisfaction, whereupon the council shall hear said objections at a regular meeting no later than three weeks following the filing of the objection with the city clerk.

The applicant shall be given written notice no less than three days prior to said hearing. The council may, upon said hearing, sustain, suspend or overrule the decision of the city manager, which decision shall be final and conclusive.

B. Pending the ruling of the council following the appeal hearing, and for ten days after notice has been provided to the permit holder of the council’s decision, any revoked permit shall remain in full force and effect. (Ord. 3529 § 1, 1993; Ord. 3424 § 1, 1991; Ord. 3350 § 1, 1991)