Banning Municipal Code Ch. 5.84 Regulation of Adult-Oriented Businesses

It is the purpose of this chapter to regulate the operation of adult-oriented businesses to promote the health, safety 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 expressive conduct that is protected by the First Amendment of the United States Constitution or the relevant provisions of the California State Constitution.

(Ord. No. 1340, § 5 (part).)

The following terms when used in this chapter shall have the meanings indicated below:

"Adult-oriented business" means any business where employees, independent contractors or patrons expose specified anatomical areas or engage in specified sexual activities, or any business which offers to its patrons services or entertainment distinguished or characterized by an emphasis on matter depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas.

Adult-oriented businesses do not include bona fide medical establishments operated by properly State of California licensed and registered medical personnel with appropriate medical credentials issued by the State of California for the treatment of patients; provided, however, that State of California licensed and registered medical personnel shall be present on the premises during any such treatment of patients. Adult-oriented businesses also do not include athletic or exercise facilities where specified anatomical areas may be exposed within a single-sex locker room or similar facility used for changing clothing where such exposure is primarily done in conjunction with changing or showering either prior to or after use of the athletic or exercise facilities. An adult-oriented business also does not include a bona fide theater, as defined in this section.

Adult-oriented businesses do not include those uses or activities, if any, the regulation of which is preempted by state law. Adult-oriented businesses shall also include any business establishment or concern which, as a regular and substantial course of conduct provides or allows performers, models, actors, actresses, employees or independent contractors to appear in any place in attire which does not opaquely cover specified anatomical areas.

In determining whether a use is an adult-oriented business, only conduct or activities which constitute a regular and substantial course of conduct shall be considered. Substantial conduct includes any use which has a significant portion of its floor area, stock-in-trade, entertainment/performance, or revenue derived from material distinguished or characterized by an emphasis on matters depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas. Isolated instances of conduct or activities described in this section as characterizing an adult-oriented business shall not be considered except where such activities, taken together, constitute a regular and substantial course of conduct.

Adult-oriented businesses include, but are not limited to, the following:

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

2. Adult Bookstore. "Adult bookstore" means an establishment which has, as a substantial portion of its stock-in-trade, a majority of its floor area, or a majority of its revenue derived from and offering for sale for any form of consideration, any one or more of the following:

a. Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, video cassettes, slides or other visual representations which are distinguished or characterized by an emphasis on the depiction or description of specified anatomical areas or specified sexual activities,

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

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

3. Adult Cabaret. An "adult cabaret" means a bar, nightclub, lounge, restaurant, juice bar, or similar establishment or concern which features as a regular and substantial course of conduct any type of live entertainment, films, motion pictures, videos, slides, other photographic reproductions or other oral, written or visual representations which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, including dancers, strippers or similar entertainers who expose specified anatomical areas of their bodies or simulate or engage in specified sexual activities;

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

5. Adult Theater. An "adult theater" means any place, building, enclosure, theater, concert hall, auditorium or structure, partially or entirely used for live performances or presentations, which place, building, enclosure, theater, concert hall, auditorium or structure is used for presenting matter distinguished or characterized by an emphasis on depicting, exposing, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein. Such place shall also include an adult theater wherein persons are regularly featured appearing in a state of nudity or giving live performances which are distinguished or characterized by an emphasis on the exposure of specified sexual activities or by specified anatomical areas. An adult theater shall not mean a bona fide theater;

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

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

8. Theater. A "theater" means a theater, concert hall or similar establishment that is primarily devoted to the production of artistic dance, literary, dramatic or comedic performances on stage. If any such performance depicts, exposes, describes or relates to specified sexual activities or specified anatomical areas, the theater shall be an adult-oriented business unless one or more of the following is true:

a. In every single regular performance, any emphasis on matters depicting, exposing, describing or relating to specified sexual activities or specified anatomical areas is on an occasional or incidental basis, or

b. The performance is primarily devoted to a verbal presentation and the spoken emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas is not a significant portion of the entire verbal display, or

c. The performance is primarily devoted to a visual presentation and the emphasis on matters depicting, exposing, describing or relating to specified sexual activities or specified anatomical areas is not intended to appeal to prurient or sexual interests.

"Adult-oriented live entertainment" means every form of live entertainment, music, band or orchestra, act, play, burlesque, revue, pantomime, scene, song, dance or act participated in by one or more persons.

Nudity or a State of Nudity. For a female person, "nudity" or "state of nudity" means bare genitals, pubic area, natal cleft or areolae or genitals, pubic area, natal cleft and areolae that are covered by clothing but the clothing (i) is less than opaque, (ii) covers less than the entire genitals, three inches across the pubic area, the entire length of the natal cleft and the entire areolae, or (iii) simulates or gives the appearance of the body part that it covers. For a male person, "nudity" or "state of nudity" means bare genitals, pubic area or natal cleft or genitals, pubic area and natal cleft that are covered with clothing but the clothing (i) is less than opaque, (ii) covers less than the entire genitals, three inches across the pubic area and the entire length of the natal cleft, or (iii) simulates or gives the appearance of the body part that it covers.

Semi-Nude. For a female person, "semi-nude" means a state of dress in which opaque clothing, including supporting straps or devices, commonly referred to as a G-string and pasties, covers no more than the entire genitals, three inches across the pubic area, and the entire length of the natal cleft. For a male person, "semi-nude" means a state of dress in which opaque clothing, including supporting straps or devices, covers no more than the entire genitals, three inches across the pubic area, and the entire length of the natal cleft. The opaque clothing may not simulate or give the appearance of the male or female body part that it covers.

"Specified anatomical areas" means and includes any of the following human anatomical areas:

1. Less than completely and opaquely covered genitals, pubic area, buttocks, anus or female breasts below a point immediately above the top of the areolae; or

2. Male genitals in a discernibly turgid state, or flaccid penis, even if completely and opaquely covered.

"Specified sexual activities" means and includes any of the following:

1. The fondling or other erotic touching of any bare human genitals, pubic area, buttocks, anus or female breast;

2. Human sex acts, actual or simulated, including intercourse, oral copulation or sodomy;

3. Human masturbation, actual or simulated;

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

5. Sex acts, actual or simulated, between a human being and an animal, including but not limited to intercourse, oral copulation or sodomy;

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

(Ord. No. 1340, § 5 (part).)

A. The adult-oriented business shall be operated in strict compliance with all applicable building, fire and health codes.

B. All off-street parking spaces and walkways serving, and entrances to, the premises of the adult-oriented business shall be illuminated from sunset to thirty minutes after closing time with a permanently installed lighting system that provides an average of not less than one candle-foot of illumination evenly distributed and measured at ground level.

C. All interior areas of the premises of the adult-oriented business to which patrons are allowed access, including restrooms, shall be illuminated by a lighting system that provides an average of not less than ten candle-foot of illumination evenly distributed and measured at floor level, except as otherwise provided in this chapter.

D. No material, object or activity depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" shall be visible from anywhere outside the interior premises of the adult-oriented business. No exterior door or window shall be propped or kept open while the premises are open for business, and all exterior windows shall be covered with opaque covering at all times.

E. Noise generated inside the premises of the adult-oriented business shall not be audible anywhere on any adjacent property or public right-of-way, within any other building, or on the premises of any other business that is located in the same building as the adult-oriented business is located.

F. The adult-oriented business shall not be open for business between the hours of 2:00 A.M. and 9:00 A.M.

G. The entrances to the premises of the adult-oriented business shall be separate from the entrances to any other businesses located in the same building as the adult-oriented business.

H. Each entrance to the premises of the adult-oriented business shall be clearly and legibly posted with a sign, not less than twenty-four inches by thirty-six inches in area, indicating that persons under the age specified are prohibited from entering the premises during business hours. The specified age shall be eighteen if alcoholic beverages are not served on the premises and twenty-one if alcoholic beverages are served on the premises. No person under the specified age shall be allowed on the premises during business hours.

I. All interior areas of the premises of the adult-oriented business within which patrons are allowed access, except restrooms, shall be configured so as to be open to view at all times from a manager's station. Visibility shall not be blocked or obscured by curtains, doors, partitions or any other obstruction.

J. At least one manager shall be on duty in the manager's station at all times while the adult-oriented business is open for business. The manager shall be the operator of the adult-oriented business or a person lawfully employed by the operator to serve as manager. At all times that a manager is on duty, his or her name shall be clearly and conspicuously posted on the premises.

K. Security shall be provided according to the following standards:

1. At all times that an adult cabaret is open for business, at least one security guard shall be on duty on the premises. If the premises have more than one public entrance, an additional security guard shall also be on duty;

2. At all times after 9:00 P.M. that any other adult-oriented business is open for business, at least one security guard shall be on duty on the premises. If the premises have more than one public entrance, an additional security guard shall also be on duty; and

3. The security guards shall patrol the premises and the lot or parcel on which the premises are located in order to prevent violations of law from occurring on premises and to ensure compliance by patrons with the requirements of this chapter. No security guard required by this subsection shall perform any other function, including but not limited to the functions of a door person, ticket seller, ticket taker, manager, salesperson, food server, or beverage server, while acting as a security guard. Each security guard shall be uniformed so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard in accordance with applicable provisions of California law and in compliance with the Banning Municipal Code.

L. All restrooms on the premises of the adult-oriented business shall be maintained in good repair, with the floors and walls clean and free of waste and bodily secretions. Each restroom shall also be maintained free and clear of material or objects that are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

M. In the event that more than one person is allowed in a restroom at any one time, a restroom attendant of the same sex as the users of the restroom shall be present in the public portion of the restroom at all times while the adult-oriented business is open for business. The attendant shall be the operator of the business or a person lawfully employed by the operator, provided, however, no manager on duty shall serve as the attendant. The attendant shall insure that no person of the opposite sex enters the restroom, that only one person at a time is in a restroom stall and that no person engages in any specific sexual activity in the public portion of the restroom, except urination into a urinal and disrobing necessarily associated with that bodily function.

N. No patron shall be allowed in any area of the premises of the adult-oriented business that is not open to the public.

(Ord. No. 1340, § 5 (part).)

A. Every adult arcade shall have at least one permanently located manager's station inside the premises. The interior of the premises shall be configured in such a manner that there is an unobstructed view from at least one manager's station of every portion of the premises to which patrons are allowed access, excluding restrooms.

B. The view required by subsection A above must be direct line of sight from the manager's station to the interior of each booth. The entrance to each booth shall be at least as wide as the widest part of the booth, but in no event less than four feet wide, and the entrance shall not be furnished with any door, curtain or covering.

C. The walls or partitions between booths shall extend to the floor, be at least seven feet in height, and be constructed of solid, opaque material such that the occupant of one booth cannot be seen by or see the occupant of any adjoining booth.

D. No booth shall be occupied by more than one patron at any one time. Nobody, except a manager on duty in the performance of his or her official duties, shall enter a booth while it is occupied by a patron.

E. No patron of, or visitor to, an adult arcade shall be allowed to stand idly by in the vicinity of any booth. A patron who is waiting for a booth shall remain in the common area of the premises, and no visitor who is not actively engaged in reviewing the merchandise that is for sale or rent shall be allowed to remain in the common area. Signs prohibiting loitering shall be clearly and conspicuously posted in the vicinity of the booths.

F. The floor, walls, seat and other interior portion of each booth shall be maintained in good repair, clean and free from waste and bodily secretions. No tissue boxes or waste receptacles shall be provided or maintained in any booth.

G. The interior of each booth as well as the interior of the premises shall be illuminated by a lighting system that provides an average of not less than ten candle-foot of illumination evenly distributed and measured at floor level.

(Ord. No. 1340, § 5 (part).)

A. Every adult cabaret shall have at least one permanently located manager's station inside the premises. The interior of the premises shall be configured in such a manner that there is an unobstructed view from at least one manager's station of every portion of the premises to which patrons are allowed access, excluding restrooms.

B. The interior premises of an adult cabaret shall be illuminated by a lighting system that provides an average of not less than five candle-foot of illumination evenly distributed and measured at floor level, except during performances at which time the illumination shall be not less than one and a quarter candle-foot evenly distributed and measured at floor level.

C. Any stage on the premises of an adult cabaret shall be screened from public view from outside the premises.

D. Every private viewing area, such as a booth, cubicle or stall, shall have at least one hundred feet of floor area. The view required by subsection A of this section must be direct line of sight from the manager's station to the interior of each private viewing area. The entrance to each such area must be at least as wide as the widest part of the area, and the entrance shall not be furnished with any door, curtain or covering. The walls or partitions between private viewing areas shall extend to the floor, be at least seven inches in height, and be constructed of solid, opaque material such that the occupant of one area cannot be seen by or see the occupant of any adjoining area.

E. No private viewing area shall be occupied by more than one patron at any one time. Nobody, except a manager on duty in the performance of his or her official duties, shall enter a private viewing area.

F. No entertainer shall be allowed to perform on the premises of an adult cabaret, except on a stage that is at least eighteen inches above the level of the floor and that is separated by a distance of at least six feet from the nearest area occupied by patrons. No patron shall be allowed within six feet of the stage while the stage is occupied by an entertainer. This subsection shall not apply to performances that take place behind plexiglass or other similar material which extends from the floor to the ceiling, provided that patrons are completely separated from entertainers.

G. No entertainer shall be allowed to appear in the nude on the premises of an adult cabaret, except in a dressing room that is maintained for the exclusive use of entertainers. No other person shall be allowed to appear nude on the premises of the adult cabaret.

H. No entertainer shall be allowed to appear semi-nude on the premises of an adult cabaret, except in the dressing room, while on stage, or while moving directly between the stage and the dressing room. No other person shall be allowed to appear semi-nude on the premises of the adult cabaret.

I. No entertainer, while performing on the premises of an adult cabaret, shall be allowed to engage in a live showing of the human male or female genitals, or pubic area with less than a fully opaque coverage, and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical part required to be covered.

J. No entertainer shall be allowed to move between the stage and the dressing room, except via a corridor that is completely separated from the area of the adult cabaret that is occupied by patrons or, if such separate access is not physically feasible, an aisle, at least six feet wide, that is provided between the dressing room and the stage when the entertainer is entering or exiting the stage. While in the aisle, no entertainer shall be allowed to touch, speak to, or fraternize with, any patrons.

K. No entertainer shall be allowed to have physical contact with any patron while on the premises of the adult cabaret. No patron shall be allowed to have physical contact with any entertainer while on the premises of the adult cabaret.

L. No entertainer shall be allowed to accept any pay or gratuity directly from any patron while on the premises of the adult cabaret. No patron shall be allowed to directly pay or give any gratuity to an entertainer while on the premises of the adult cabaret.

M. No entertainer shall be allowed to enter or exit the interior premises of the adult cabaret via a door that is used by patrons.

N. No private viewing area shall be occupied by more than one patron at any one time. No employee or independent contractor of the adult cabaret, other than the manager on duty, shall enter such an area during a performance of adult-oriented entertainment. This subsection shall not apply to the live entertainer who is giving the performance.

O. Separate restroom facilities for males and females shall be maintained on the premises of the adult cabaret and shall be clearly and conspicuously posted for the exclusive use of males or females. No male shall be allowed to use any restroom posted for females and no female shall be allowed to use any restroom posted for males, except to carry out duties of repair, maintenance or cleaning of the restroom.

P. A daily log of entertainers shall be maintained on the premises of the adult cabaret. The name and social security number of the entertainer together with the time of the performance shall be entered into the log prior to the commencement of the performance. The log shall be available for inspection by any police officer or health officer of the city at any time during which the adult cabaret is open for business.

(Ord. No. 1340, § 5 (part).)

The operator of an adult-oriented business shall allow representatives of the finance department, fire department, planning department or police department of the city to inspect the premises of an adult-oriented business for the purpose of insuring compliance with the provisions of this chapter at any time that the adult-oriented business is open for businesses.

(Ord. No. 1340, § 5 (part).)

A. No entertainer shall perform adult-oriented entertainment in the city, except on the premises of an adult cabaret. Nor shall any entertainer perform adult-oriented entertainment between the hours of 2:00 A.M. and 9:00 A.M.

B. No entertainer shall perform on the premises of an adult cabaret, except on a stage that is at least eighteen inches above the level of the floor and that is separated by a distance of at least six feet from the nearest area occupied by patrons. This subsection shall not apply to performances that take place behind plexiglass or other similar material which extended from the floor to the ceiling, provided that patrons are completely separated from entertainers.

C. No entertainer shall appear in the nude on the premises of an adult cabaret, except in a dressing room that is maintained for the exclusive use of entertainers.

D. No entertainer shall appear semi-nude on the premises of an adult cabaret, except in the dressing room, while on stage, or while moving directly between the stage and the dressing room.

E. No entertainer shall move between the stage and the dressing room except via a corridor that is completely separated from the area of the adult cabaret that is occupied by patrons or, if the adult-oriented business does not contain such a corridor, an aisle that is at least three feet wide. While in the aisle, no entertainer shall touch, speak to, or fraternize with, any patron.

F. No entertainer, while performing on the premises of an adult cabaret, shall engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque coverage, and/or the female breast with less than fully opaque coverage over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical part required to be covered.

G. No entertainer shall have physical contact with any patron while on the premises of the adult cabaret.

H. No entertainer shall accept any pay or gratuity directly from any patron while on the premises of the adult cabaret.

I. No entertainer shall enter or exit the interior premises of the adult cabaret via a door that is used by patrons.

J. No entertainer shall enter a restroom on the premises of an adult-oriented business that is posted for use by members of the opposite sex, except to carry out duties of repair, maintenance or cleaning of the restroom.

(Ord. No. 1340, § 5 (part).)

Notwithstanding any other provision of this Code to the contrary, a violation of this chapter shall not constitute a misdemeanor or an infraction. A violation of this chapter, or any provision hereof, is hereby declared to constitute a public nuisance, which may be abated or enjoined by an action filed in the Superior Court for the County of Riverside.

(Ord. No. 1340, § 5 (part).)

A person operating an adult-oriented business shall cause a sign to be posted in a conspicuous space visible from the main entrance of the establishment, containing the message, with fourteen-point type, set forth in all capitals, which reads:

No person shall intentionally touch an employee or independent contractor who is displaying or exposing any less than completely and opaquely covered genitals, pubic regions, buttocks, anuses, or female breasts below a point immediately above the top of the areolae or human male genitals in a discernibly turgid state, even if completely and opaquely covered, or engaging in or simulating any of the following:

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

2. Human sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;

3. Human masturbation, actual or simulated;

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

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

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

7. No waiter(s) or waitress(es) employed at this business shall appear on the premises thereof in the nude, semi-nude, or display or expose less than completely and opaquely covered genitals, pubic regions, buttocks, anuses, or female breasts below a point immediately above the top of the areolae or human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(Ord. No. 1340, § 5 (part).)