Beverly Hills Municipal Code Art. 27.7 Adult Entertainment Businesses

The purpose of this article is to prevent community wide adverse secondary effects that can be brought about by the unregulated operation of adult entertainment businesses. These adverse secondary effects include, but are not limited to: depreciation of property values; increased vacancy rates in residential and commercial areas; increased criminal activity; increased litter, noise, and vandalism; and interference with the enjoyment of residential property in the vicinity of such businesses. (Ord. 98-O-2301, eff. 7-2-1998)

For the purpose of this article, unless it is plainly evident from the context that a different meaning is intended, the following definitions shall apply:

ADULT ENTERTAINMENT BUSINESS: Any of the following:

Adult Arcade: An establishment where, for any form of consideration, as a regular and substantial course of conduct one or more still or motion picture projectors, or similar machines, for viewing by five (5) or fewer persons each, are used to show films, computer generated images, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.

Adult Bookstore: An establishment that, for any form of consideration, as a regular and substantial course of conduct offers for sale, rent, or viewing either adult entertainment material, adult entertainment merchandise or both.

Adult Cabaret: An establishment that serves food or beverages and that, for any form of consideration, as a regular and substantial course of conduct presents live performances that are characterized by an emphasis upon specified sexual activities or feature any seminude person.

Adult Motion Picture Theater: An establishment that, for any form of consideration, as a regular and substantial course of conduct offers to show films, computer generated images, motion pictures, videocassettes, slides, or other photographic reproductions that are characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.

Adult Theater: An establishment that, for any form of consideration, as a regular and substantial course of conduct presents live performances that are characterized by an emphasis upon specified sexual activities or feature any seminude person.

Modeling Studio: An establishment that provides, for any form of consideration, seminude figure models or figure models who expose specified anatomical areas for the purpose of observation, sketching, photography, painting, sculpting or other depiction by persons paying such consideration. This definition shall not include schools maintained pursuant to standards set by the state board of education.

Any business that, for any form of consideration, as a regular and substantial course of conduct offers to its patrons products, merchandise, services or entertainment characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.

ADULT ENTERTAINMENT MATERIAL: Any audiotape, book, periodical, magazine, photograph, drawing, sculpture, motion picture film, videotape recording, or other visual representation, characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.

ADULT ENTERTAINMENT MERCHANDISE: Adult entertainment implements or paraphernalia, such as, but not limited to: dildos; auto sucks; vibrators; edible underwear; benwa balls; inflatable orifices; anatomical balloons with orifices; simulated vaginas and similar adult entertainment devices that are designed or marketed primarily for the stimulation of human genital organs or sadomasochistic activity.

ADULT HOTEL/MOTEL: A hotel, motel or similar establishment offering public accommodations for any form of consideration that either:

A. 1. Provides patrons with closed circuit television transmissions, films, motion pictures, videos, slides or other photographic or electronic reproductions that are characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas; and

2. Advertises the availability of such material by means of a sign visible from the public right of way, or by means of any off premises advertising including, but not limited to, newspapers, magazines, pamphlets, leaflets, radio or television.

B. Rents, leases or lets any single guestroom for less than any ten (10) hour period.

C. Rents, leases or lets any single guestroom more than twice in any twenty four (24) hour period.

D. Allows a tenant or occupant to subrent a guestroom for a time period less than ten (10) hours.

BUSINESS TRIANGLE AREA: All those parcels included in that area north of Wilshire Boulevard, west of the first alley west of North Crescent Drive, and south of Santa Monica Boulevard (South Roadway), including all those parcels having frontage on the north side of the South Roadway of Santa Monica Boulevard, from North Crescent Drive to Wilshire Boulevard but excluding those parcels having frontage on the north side of Wilshire Boulevard.

CHARACTERIZED BY AN EMPHASIS UPON: The dominant or essential theme of the object described by such phrase.

DIRECTOR: The director of planning and community development of the city of Beverly Hills or the designee thereof.

HEARING OFFICER: The city manager of the city of Beverly Hills, or the designee thereof.

OWNER: A. The sole proprietor of an adult entertainment business;

B. Any general partner of a partnership that owns and operates an adult entertainment business;

C. The owner of a controlling interest in a corporation that owns and operates an adult entertainment business; and

D. The person designated by the officers of a corporation to be the zone clearance holder for an adult entertainment business owned and operated by the corporation.

PARK: A park, playground, swimming pool or athletic field within the city that is under the control, operation or management of the city or any other public entity.

REGULAR AND SUBSTANTIAL COURSE OF CONDUCT: Any of the following conditions exist:

A. At least thirty percent (30%) of the stock-in- trade is devoted to adult entertainment material, adult entertainment merchandise, or both; provided, however, that this criteria shall not apply to mail order businesses or wholesale businesses with no patrons on the premises.

B. At least thirty percent (30%) of the total display area is devoted to adult entertainment material, adult entertainment merchandise, or both; provided, however, that this criteria shall not apply to mail order businesses or wholesale businesses with no patrons on the premises.

C. The business presents or offers to present, on any four (4) or more separate days within any thirty (30) day period, live entertainment that is characterized by an emphasis upon specified sexual activities or features any seminude person.

D. The business presents or offers to present, on any four (4) or more separate days within any thirty (30) day period, nonlive entertainment that is characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.

E. At least thirty percent (30%) of the gross receipts of the business are derived from the sale, trade, rental, display or presentation of services, products, materials or entertainment that is characterized by an emphasis upon specified sexual activities or the exposure of specified anatomical areas.

RELIGIOUS INSTITUTION: A structure that is used primarily for religious worship and related religious activities.

SCHOOL: A. Any child or day care facility; and

B. Any institution of learning for minors, whether public or private, offering instruction in the courses of study required by the California Education Code and maintained pursuant to standards set by the state board of education. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college or university.

SEMINUDE: A state of dress in which clothing completely and opaquely covers the genitals, pubic region, buttocks, and nipple of the female breast, but does not completely and opaquely cover the female breast below the top of the areola.

SEXUAL ENCOUNTER CENTER: A business, agency or person that, for any form of consideration, provides a place where three (3) or more persons, not all members of the same family, may congregate, assemble or associate for the purpose of engaging in specified sexual activities or exposing specified anatomical areas.

SPECIFIED ANATOMICAL AREAS: A. Less than completely and opaquely covered genitals, pubic region, buttocks, and nipple of the female breast;

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

C. Any device, costume or covering that simulates any of the body parts included in subsection A or B of this definition.

SPECIFIED SEXUAL ACTIVITIES: Shall mean the following, whether performed directly or indirectly through clothing or other covering:

A. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast;

B. Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;

C. Masturbation, actual or simulated;

D. Excretory functions as part of, or in connection with, any of the other activities described in subsections A through C of this definition. (Ord. 98-O-2301, eff. 7-2-1998; amd. Ord. 99-O-2337, eff. 11-19-1999; Ord. 01-O-2386, eff. 12-9-2001; Ord. 02-O-2391, eff. 3-8-2002; Ord. 02-O-2396, eff. 4-26-2002; Ord. 02-O-2402, eff. 6-20-2002)

It is unlawful for any person to operate, engage in, conduct or carry on any adult entertainment business unless the owner of such business first obtains from the director a zone clearance for such business. (Ord. 98-O-2301, eff. 7-2-1998)

A. Applications for a zone clearance shall be submitted on a form provided by the director and shall be accompanied by a nonrefundable application fee in an amount established by resolution of the city council for zone clearance applications, which amount shall be set forth in the city's official fee schedule. The application shall be signed by the applicant and either the record owner of the property or the lessor of the premises (if the business premises are leased to the applicant business) where the adult entertainment business is to be conducted.

B. If the director determines that the applicant has completed the application improperly, the director shall promptly notify the applicant of such fact and, upon request of the applicant, shall return the application. As a convenience to the applicant, upon request of the applicant, the director shall grant the applicant an extension of time of ten (10) calendar days to complete the application properly. The time period for granting or denying the requested permit shall be stayed during the period in which the applicant is granted an extension of time. Unless the applicant requests an extension of time pursuant to this subsection, nothing in this subsection shall be construed to relieve the director of the duty to make a decision within the time limits set forth in section 10-3-2774 of this article. (Ord. 98-O-2301, eff. 7-2-1998; amd. Ord. 99-O-2319, eff. 1-5-1999; Ord. 99-O-2321, eff. 1-19-1999; Ord. 01-O-2386, eff. 12-9-2001)

The director shall, within thirty (30) city business days of the filing of an application, approve and issue a zone clearance if a complete application has been submitted and the requirements of this article have been met; otherwise the zone clearance shall be denied. Notice of the approval or denial of the zone clearance shall be given to the applicant in writing by first class mail, postage prepaid, deposited in the course of transmission with the United States postal service within three (3) city business days of the date of such decision. If the application is denied, the director shall attach to the notice a statement of the reasons for the denial. The times set forth in this section shall not be extended except upon the written consent of the applicant. Any interested person may appeal the decision of the director to the hearing officer in accordance with this article. (Ord. 98-O-2301, eff. 7-2-1998; amd. Ord. 99-O-2319, eff. 1-5-1999; Ord. 99-O-2321, eff. 1-19-1999)

A. An adult entertainment business may be located in the business triangle, provided such business complies with all of the following requirements:

1. The adult entertainment business is not within three hundred feet (300') of any other adult entertainment business located within or outside of the city.

2. The adult entertainment business is not within three hundred feet (300') of any residential use located within or outside of the city.

3. The adult entertainment business is not within three hundred feet (300') of any park, religious institution or school located within or outside of the city.

4. The adult entertainment business is not located on the same block as any other adult entertainment business.

5. The adult entertainment business does not occupy street frontage in excess of thirty five feet (35').

B. The distances set forth in subsections A1 through A3 of this section shall be measured as a straight line, without regard to intervening structures, from the property line of the property containing the adult entertainment business to the property line of the property so used at the time of submission of the permit application.

C. No adult entertainment business may be located within the city except as provided in this section. (Ord. 98-O-2301, eff. 7-2-1998; amd. Ord. 02-O-2391, eff. 3-8-2002)

A. No person shall operate an adult entertainment business under the authority of a zone clearance at any place other than the address of the adult entertainment business stated in the application for the zone clearance.

B. No zone clearance issued pursuant to this article shall be transferrable.

C. Any attempt to transfer a zone clearance is hereby declared invalid and the zone clearance shall automatically become void effective the date of such attempted transfer. (Ord. 98-O-2301, eff. 7-2-1998)

(Rep. by Ord. 02-O-2402, eff. 6-20-2002)

The provisions of this chapter regulating adult entertainment businesses are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other applicable provisions of this code or other law. Notwithstanding the preceding, neither a conditional use permit for a nightclub use nor a permit for public dancing shall be required for an adult entertainment business. (Ord. 98-O-2301, eff. 7-2-1998; amd. Ord. 01-O-2386, eff. 12-9-2001)

A. Any interested person may appeal the director's issuance or denial of issuance of a zone clearance to the hearing officer in accordance with the provisions of this section.

B. A written appeal petition, and a nonrefundable appeal fee in an amount set by resolution of the city council, must be filed with the city clerk within ten (10) calendar days after the decision of the director; provided, however, that if the ten (10) days expires on a date that city hall is not open for business, then the appeal period shall be extended to the next city business day. Failure to file a timely appeal petition, together with the nonrefundable appeal fee, deprives the hearing officer of jurisdiction to hear the appeal.

C. The appeal petition must indicate in what way the appellant contends the director's decision was incorrect or must provide extenuating circumstances that the appellant contends would justify reversal or modification of the director's decision.

D. The hearing officer shall conduct a hearing and take the matter under submission for decision no later than thirty (30) city business days following the timely filing of an appeal, unless the applicant and appellant (if different than the applicant) consent in writing to an extension. At least ten (10) calendar days prior to such hearing, written notice thereof shall be mailed to the applicant and appellant (if different than the applicant) by U.S. mail with a proof of service attached.

E. Hearings shall be conducted in accordance with procedures established by the hearing officer. All parties involved shall have a right to: 1) offer testimonial, documentary and tangible evidence bearing on the issues; 2) be represented by counsel; and 3) confront and cross examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness.

F. Unless otherwise specifically provided by law, in any hearing under this article the burden is on the city to prove that the determination of the director that is being appealed is reasonable and not an abuse of discretion.

G. The hearing officer shall, within ten (10) city business days from the submission of the matter for decision, render a written decision supported by findings. No later than three (3) city business days after the hearing officer's decision, notice of the decision and a copy thereof shall be mailed by first class mail, postage prepaid, to the appellant. Such notice shall contain the substance of the following statement: "You are hereby notified that the time within which judicial review of this decision may be sought is governed by California Code of Civil Procedure section 1094.6."

H. The applicant and appellant (if different than the applicant) may seek judicial review of the hearing officer's decision in accordance with section 1-5-302 of this code. (Ord. 98-O-2301, eff. 7-2-1998; amd. Ord. 99-O-2319, eff. 2-5-1999; Ord. 99-O-2321, eff. 2-19-1999; Ord. 99-O-2337, eff. 11-19-1999)

A. Except as provided in subsection B of this section, the provisions of this article shall be applicable to all adult entertainment businesses described herein whether such businesses were established before or after the effective date of this article.

B. Any adult entertainment business legally in business prior to the effective date of this article shall have six (6) months to comply with the terms of this article. (Ord. 98-O-2301, eff. 7-2-1998)