Big Bear Lake Municipal Code Ch. 5.98 Sexually Oriented Businesses

It is the intent of this chapter to prevent community-wide adverse economic impacts, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by sexually oriented businesses in close proximity to each other or proximity to other incompatible uses such as schools for minors, churches, and residentially zoned districts or uses. The city council finds that it has been demonstrated in various communities that the concentration of sexually oriented businesses causes an increase in the number of transients in the area, and an increase in crime, and in addition to the effects described above can cause other businesses and residents to move elsewhere. It is, therefore, the purpose of this chapter to establish reasonable and uniform regulations to ameliorate the harmful effects of sexually oriented businesses or their close proximity to incompatible uses, while permitting the location of sexually oriented businesses in certain areas.

(Ord. 99-302 § 2(part), 1999: Ord. 98-290 § 2(part), 1998)

As used in this chapter, the following terms are defined in this section:

"Bar" means any commercial establishment licensed by the state Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises.

"Chief of police" means the chief of police of the city of Big Bear Lake or his or her designee.

"City council" means the city council of the city of Big Bear Lake.

"Day" means a calendar day and not business day. Whenever "day" is used to identify requirements of this chapter to be performed on a particular day, which day falls upon a holiday, Saturday or Sunday, the day for performance of the requirements of this chapter will be the next business day after such holiday, Saturday or Sunday.

"Distinguished or characterized by an emphasis upon" means and refers to the dominant or essential theme of the object described by such phrase. For example, when the phrase refers to films "which are distinguished or characterized by an emphasis upon" the depiction or description of specified sexual activities or specified anatomical areas, the films so described are those whose dominant or predominant character and theme are the depiction of the enumerated sexual activities or anatomical areas. See Pringle v. City of Covina, 115 Cal. App. 3d 151, 171 Cal. Rptr. 251 (1981).

"Establishment of a sexually oriented business" means and includes any of the following:

1. The opening or commencement of any sexually oriented business as a new use;

2. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business defined herein;

3. The addition of any of the sexually oriented businesses defined herein to any other existing sexually oriented business; or

4. The relocation of any such sexually oriented business.

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

"Health officer" means the health officer of the county of San Bernardino or his or her duly authorized representative.

"Nudity" or a "state of nudity" means the showing of the human male or female genitals, pubic area, buttocks or anus with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernible turgid state.

"Patron" means a customer.

"Person" means any individual, partnership, co-partnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

"Regularly features" means, with respect to an adult theater, adult cabaret, adult arcade or adult motion picture theater, a regular and substantial course of conduct. Performances which 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 a one hundred eighty-day period shall to the extent permitted by law be deemed to be a regular and substantial course of conduct.

"Religious institution" means a structure which is used primarily for religious worship and related religious activities.

"School" means any child or day care facility, or an institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained 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.

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

"Sexually oriented businesses" means any one of the following:

1. "Adult arcade" means an establishment which, for any form of consideration, provides one or more still or motion picture projectors, or similar machines, for viewing by patrons and which shows films, computer generated images, motion pictures, video cassettes, slides or similar photographic reproductions, twenty percent or more of which showings are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

2. "Adult bookstore" means an establishment having a substantial and a significant portion of its business derived from the sale or rental of books, magazines, periodicals or other printed matter, or of photographs, films, motion pictures, video cassettes, slides, tapes, or other form of visual or audio representations which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas, or sexually oriented merchandise. The fact that twenty percent or more of its floor area is devoted to such materials, or that twenty percent or more of its gross income is derived from such materials, or that the establishment advertises itself as "adult" in nature, shall, to the extent permitted by law, be evidence that the establishment is an "adult bookstore."

3. "Adult business" means any business establishment or concern which operates as an adult bookstore, adult video store, adult arcade, adult cabaret, adult theater, adult motion picture theater, adult motel, modeling studio, or any other business or concern which regularly features or offers to its patrons as a substantial significant portion of its business, products, merchandise, services or entertainment which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas but not including those uses or activities, the regulation of which is preempted by state law.

"Adult business" also includes any establishment which as a regular and substantial course of conduct provides or allows performers, models, or employees to appear in any public place dressed only in lingerie.

4. "Adult cabaret" or "adult theater" means a nightclub, restaurant, or business establishment which regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified sexual activities; regularly features persons who appear semi-nude; or which shows films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions twenty percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

5. "Adult hotel or motel" means a hotel or motel or similar business establishment offering public accommodations for any form of consideration which:

6. Provides patrons with closed circuit television transmissions, films, computer generated images, motion pictures, video cassettes, slides or other photographic reproductions twenty percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and (2) 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.

7. "Adult motion picture theater" means a business establishment where, for any form of consideration, films, computer generated images, motion pictures, video cassettes, slides or similar photographic reproductions are shown, and twenty percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

8. "Modeling studio" means a business which regularly features, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who, for the purposes of sexual stimulation of patrons, display "specified anatomical areas" to be observed, 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" does not include a studio or similar facility owned, operated or maintained by an individual artist or group of artists, which does not provide, permit or make available "specified sexual activities."

"Sexually oriented business operator" or "operator" means a person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of a sexually oriented business or the conduct or activities occurring on the premises thereof.

"Sexually oriented business performer" or "performer" means any person who is an employee or independent contractor of the sexually oriented business, and any person who, with or without any compensation or other form of consideration, performs live entertainment dressed in no more than a state of semi-nudity for patrons of a sexually oriented business.

"Sexually oriented material" means any element of sexually oriented merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, or other written, oral or visual representation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter depicting, describing or relating to specific sexual activities or specified anatomical parts.

"Sexually oriented merchandise" means sexually oriented implements and paraphernalia, including: dildos, auto-sucks, sexually oriented vibrators, edible underwear, ben-wah balls, inflatable orifices, anatomical balloons with orifices, simulated and battery-operated vaginas and similar sexually orient devices, or other merchandise characterized by an emphasis on sexual activities or specified anatomical parts.

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

1. Less than completely and opaquely covered human: (a) genitals or pubic region; (b) buttocks; (c) female breast below a point immediately above the top of the areola;

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

3. Any device, costume or covering that simulates any of the body parts included in subsections (1) or (2) of this definition.

"Specified sexual activities" means and includes any of the following, whether performed directly or indirectly through clothing or other covering:

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

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

3. Masturbation, actual or simulated, or

4. Excretory functions as part of or in connection with any of the other activities described in subsections (1) through (3) of this definition.

"Studies" means the studies and reports prepared by other cities and judicial rulings referred to in Section 1(A) of the ordinance codified in this chapter.

(Ord. 99-302 § 2(part), 1999: Ord. 98-290 § 2(part), 1998)

A. No sexually oriented business shall be operated in any manner that permits the observation of any materials or activities depicting, describing or relating to specified sexual activities or specified anatomical areas from any public way or from any location outside the building or area of such establishment. No sexually oriented business shall be operated in any manner that permits the observation of any live performance depicting, describing or relating to specified sexual activities or semi-nudity from any public way or from any location outside the building or area of such establishment. This provision shall apply to any display, decoration, sign, show window or other opening. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times.

B. All off-street parking area and premises entries of the sexually oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one footcandle of light on the parking surface or walkways. The required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the sexually oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct.

C. The premises within which the sexually oriented business is located shall provide sufficient sound-absorbing insulation so that noise generated inside the premises shall not be audible anywhere on any adjacent property or public right-of-way or within any other building or other separate unit within the same building.

D. Except for those businesses also regulated by the California Department of Alcoholic Beverage Control, a sexually oriented business shall be open for business only between the hours of eight a.m. and midnight on any particular day.

E. The building entrance to a sexually oriented business shall be clearly and legibly posted with a notice indicating that persons under eighteen years of age are precluded from entering the premises. The notice shall be constructed and posted to the satisfaction of the chief of police. No person under the age of eighteen years shall be permitted within the premises at any time.

F. All indoor areas of the sexually oriented business within which patrons are permitted, except restrooms, shall be open to view by the management at all times.

G. Any sexually oriented business which is also an adult arcade which provides viewing area(s) shall comply with the following additional requirements:

1. Each adult arcade shall have at least one manager's station. It shall be the duty of the operator(s) 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 adult arcade.

2. The interior of the adult arcade shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the adult arcade to which any patron is permitted access for any purpose, excluding restrooms. If the adult arcade has two or more manager's stations designated, then the interior of the adult arcade shall be configured in such a manner that there is an unobstructed view of each area of the adult arcade to which any patron is permitted access for any purpose, excluding restrooms, 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. There shall be a security system which visually records each viewing booth at all times that the business is open or occupied for business.

3. It shall be the duty of the operator(s) and also the duty of all employees present in the adult arcade to ensure that the individual viewing areas remains unobstructed by any doors, walls, persons, merchandise, display rack or other materials at all times and to ensure that no patron is permitted access to any area of the adult arcade which has been designated as an area in which patrons will not be permitted.

4. No individual viewing area may be occupied by more than one person at any one time. "Individual viewing area" means a viewing area designed for occupancy by one person. Individual viewing areas of the adult arcade shall be operated and maintained without any hole or other opening or means of direct communication or visual or physical access between the interior space of two or more individual viewing areas.

5. No individual viewing area shall contain booths, stalls or partitioned portions of such individual viewing area used for the viewing of sexually oriented material or other forms of entertainment, having doors, curtains or portal partitions, unless such individual viewing areas containing booths, stalls or partitioned portions have at least one side open to the manager's station and is visible to such manager's station. Any booth, stall or partitioned portion of an individual viewing area authorized under this subsection shall be constructed so as to allow twelve inches of open space between the bottom of the stall or partition and the floor. Such open space shall remain unobstructed at all times.

6. The adult arcade shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access, but such lighting shall not be of an intensity as to prevent the viewing of the sexually oriented material.

7. It shall be the duty of the operator(s) and also the duty of all employees present at the adult arcade to ensure that the illumination described above is maintained at all times that any patron is present in the adult arcade.

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

H. All areas of the sexually oriented business which are accessible to the public shall be illuminated at a minimum of the following footcandles, minimally maintained and evenly distributed at ground level:

I. Patrons and employees shall not use the same restrooms. The sexually oriented business shall provide and maintain separate restroom facilities for male patrons and employees, on the one hand, and female patrons and employees, on the other. Male patrons and employees shall be prohibited from entering any restroom for females, and female patrons and employees shall be prohibited from entering any restroom for males, except when an employee carries out duties of repair, maintenance or cleaning of the restroom facilities. All restrooms shall be free from any sexually oriented materials. All restrooms shall not contain television monitors or other motion picture or video projection, computers, recording or reproduction equipment. The foregoing provisions of this subsection shall not apply to a sexually oriented business which deals exclusively with sale or rental of sexually oriented materials which are not used or consumed on the premises, such as an adult bookstore, or adult video store, and which does not provide restroom facilities to its patrons or the general public.

J. The following additional requirements shall pertain to sexually oriented businesses which provide live performances in adult cabarets or adult theaters:

1. No person shall perform live entertainment for patrons of a sexually oriented business except upon a stage at least two feet above the level of the floor which is separated by a distance of at least ten feet from the nearest area occupied by patrons, and no patron shall be permitted within ten feet of the stage while the stage is occupied by a sexually oriented business performer.

2. The sexually oriented business shall provide separate dressing room facilities for performers which are exclusively dedicated to the performers' use. No public access will be permitted to any dressing room facility.

3. The sexually oriented business shall provide an entrance and exit for performers which is separate from the entrance and exit used by patrons.

4. The sexually oriented business shall provide access for performers between the stage and the dressing rooms which is completely separated from the patrons. If such separate access is not physically feasible, the sexually oriented business shall provide a minimum three-foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers capable of, and which actually results in, preventing any physical contact between patrons and performers.

5. No performer, either before, during or after performances, shall have any physical contact with any patron and no patron shall have physical contact with any performer either before, during or after performances by such performer. This subsection shall only apply to physical contact on the premises of the sexually oriented business.

6. Fixed rails at least thirty inches in height shall be maintained establishing the separations between performers and patrons required by this section.

7. No patron shall directly pay or give any gratuity to any performer and no performer shall solicit any pay or gratuity from any patron.

K. No operator, owner or other person with managerial control over a sexually oriented business shall permit any person on the premises of a sexually oriented business to engage in a live showing of any specified anatomical areas. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical areas required to be covered.

L. No sexually oriented business performer on the premises of a sexually oriented business shall engage in a live showing of any specified anatomical areas. This provision may not be complied with by applying an opaque covering simulating the appearance of the specified anatomical areas required to be covered.

M. Sexually oriented businesses shall employ security guards in order to maintain the public peace and safety to prevent any illegal activity from occurring on the premises, based upon the following standards:

1. Sexually oriented businesses featuring live entertainment shall provide at least one security guard at all times while the business is open. If the occupancy limit of the premises is greater than thirty-five persons, an additional security guard shall also be on duty at all times while the business is open.

2. Security guards for other sexually oriented businesses may be required if it is determined by the chief of police that their presence is necessary in order to maintain public peace and safety and to prevent any illegal activity from occurring on the premises.

3. Security guards shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. Each security guard 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 door person, ticket seller, ticket taker, admittance person, or sole occupant of the manager's station while acting as a security guard.

N. The sexually oriented business shall not conduct any massage, acupuncture, bodywrapping, tattooing, acupressure, fortune-telling or escort services on the premises.

O. The sexually oriented business shall provide a security system that visually records and monitors all parking lot areas, at all times that the business is open or occupied for business.

P. Views of parking areas and doorways of sexually oriented businesses shall be unobstructed so as to allow visibility of these areas from the public rights-of-way.

Q. The sexually oriented business shall comply with the city's sign regulations.

R. Sexually oriented business shall comply with the development, parking and design requirements of the underlying zone for the specific underlying use.

(Ord. 99-302 § 2(part), 1999: Ord. 98-290 § 2(part), 1998)

A. It is unlawful for any operator or other person in charge of any sexually oriented business to employ in the sexually oriented business any person who is not at least eighteen years of age.

B. It is unlawful for any operator or other person in charge of any sexually oriented business to permit to enter, or remain within the sexually oriented business, any person who is not at least eighteen years of age.

(Ord. 99-302 § 2(part), 1999: Ord. 98-290 § 2(part), 1998)

All operators shall permit the chief of police to conduct unscheduled inspections of the premises of the sexually oriented business for the purpose of insuring compliance with the law and the development and performance standards applicable to sexually oriented businesses, at any time it is occupied or opened for business.

(Ord. 99-302 § 2(part), 1999: Ord. 98-290 § 2(part), 1998)

A. No sexually oriented business as defined in Section 5.98.020 shall be established in any zone other than that identified as an overlay district shown on Attachment A of the ordinance codified in this chapter, and only within the following location:

1. No closer than five hundred feet of any residential zone (R1 or R3);

2. No closer than five hundred feet of any parcel of real property in which religious institutions or schools are located.

B. The measure of reference distance in this section shall be a straight line from the nearest property line containing the sexually oriented business to the nearest property line of an affected used without regard to intervening structures.

(Ord. 99-302 § 2(part), 1999)

The provisions of this chapter regulating sexually oriented 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 Big Bear Lake.

(Ord. 99-302 § 2(part), 1999: Ord. 98-290 § 2(part), 1998)