Fresno County Municipal Code Ch. 6.33 License Requirements for Adult Businesses

It is the purpose and intent of this chapter to regulate adult businesses to promote the health, safety, and general welfare of the citizens of the county and to establish reasonable and uniform regulations to prevent any deleterious location and concentration of adult businesses within the county, thereby reducing or eliminating the adverse secondary effects from such adult businesses. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene material.

The further purpose of this chapter is to regulate adult businesses which, unless closely regulated may have serious secondary effects on the community. These secondary effects include, but are not limited to, the following: depreciation of property values, deterioration of neighborhoods, increases in vacancy rates in residential and commercial areas, increases in incidents of criminal activity, increases in litter, noise, and interference with residential property owners' enjoyment of their property in the vicinity of such businesses. It is the board's intent to prevent community-wide adverse impacts which can be brought about by the concentration of adult businesses close to each other or to incompatible uses, such as schools, churches, parks, public facilities and residences. The board finds that it has been demonstrated in various communities that the concentration of adult businesses causes adverse impacts described above and can cause businesses and residents to move elsewhere. It is, therefore, the further purpose of this chapter to establish reasonable and uniform regulations to prevent the concentration of adult businesses or their proximity to incompatible uses, while permitting the location of adult businesses in certain areas.

The board bases its findings on studies which substantiate the adverse, secondary effects of adult businesses. These studies include the National Law Center's Summaries of SOB (Sexually Oriented Businesses) Land Use Studies (1997); the Final Report and Summary of the Attorney General's Commission on Pornography (1986); and the Report on the Secondary Effects of the Concentration of Adult Use Establishments in the Times Square Area (1994).

(Ord. 02-012, § 1)

A. "Adult businesses" include the following:

1. Any business conducted for the entertainment of adults, engaged in the selling, renting, or displaying of publications depicting the specified anatomical areas or specified sexual activities described herein or other material of a sexually explicit nature. Included in the definition is any business, that as a substantial or significant course of conduct, sells, offers for sale, rents, exhibits, shows or displays publications depicting the anatomical areas or specified sexual activities described herein or other material of a sexually explicit nature. Also included in this definition is any business selling, renting, or displaying sexually oriented devices intended for use in the specified sexual activities;

2. A particular business at a particular location that sells, offers for sale, rents, exhibits, shows or displays specified anatomical areas or specified sexual activities in the form of a book, magazine, newspaper, pamphlet, film video or any other form or medium, or sexually oriented devices intended for use in the specified sexual activities, which received twenty-five percent or more of the gross revenue from, or devotes twenty-five percent or more of the stock on hand or twenty-five percent or more of the gross floor area to such activity, is presumed to be engaging in "substantial or significant" conduct with respect to such activity;

3. Any business wherein the selling of or otherwise providing any food or beverage served by employees engaged in partial or total nudity or exposed specified anatomical areas;

4. Any business conducted for the entertainment of adults wherein an employee, patron or any other person engages in or is shown specified sexual activities or exhibits or engages in partial or total nudity or otherwise exposes specified anatomical areas.

5. Any business, which as a substantial or significant portion of its business, provides live or filmed entertainment wherein specified anatomical areas of the human anatomy are exposed.

B. "Specified anatomical areas" include any of the following, whether actual or simulated: (1) Less than completely and opaquely covered: (a) human genitals or pubic region, (b) buttock, and (c) female breast below a point immediately above the top of the areola; or (2) human male genitals in a discernibly erect state, even if completely and opaquely covered.

C. "Specified sexual activities" means and includes any of the following: (1) the fondling or sexual touching of human genitals, pubic regions, buttocks, anus, or female breasts; or (2) sex acts, normal or deviant, 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 above.

(Ord. 02-012, § 1)

A. No adult business shall be located:

1. Within a zoning district other than M-l, M-2, and M-3;

2. Within one thousand feet of any public or private school or day nursery, whether or not located within the county;

3. Within two hundred fifty feet of any church, chapel, temple, mosque, or other publicly recognized place of worship, whether or not located within the county; and

4. Within five hundred feet of:

a. Any single family, multi-family, condominium or mobile home residence, except a caretaker's residence, in any zoning district, whether or not located within the county, and

b. Any privately owned recreation area, amusement park or sports facility, whether or not located within the county.

B. Adult businesses shall not be located within one thousand feet of any other adult business.

C. The distances specified in this section shall be measured as follows:

1. If the zoning district in which the proposed adult business is to be established includes the entire assessor's parcel(s) in which the proposed business is to be established, the distances specified in this section shall be measured in a straight line, without regard to intervening structures, or topographic features from the nearest point of the property line of the assessor's parcel(s) in which the proposed business is to be established to the nearest point of the property line of the assessor's parcel containing a use listed in Section 6.33.030;

2. If the zoning district in which the proposed adult business is to be established includes only a portion of the assessor's parcel(s) in which the proposed business is to be established, the distances specified in this section shall be measure in a straight line, without regard to intervening structures, or topographic features from the nearest point of zoning district on said parcel(s) in which the proposed business is to be established to the nearest point of the property line of the assessor's parcel containing a use listed in Section 6.33.030.

(Ord. 02-012, § 1)

A. The following development standards shall apply to all adult businesses:

1. No adult business shall be located in any temporary or portable structure;

2. Trash dumpsters shall be enclosed by a screening enclosure so as not to be accessible to the public;

3. The entire exterior grounds, including the parking lot and landscaped areas, shall be lighted during business hours in such a manner that all areas are clearly visible at all times;

4. Any signage shall conform to the requirements of the Fresno County zoning ordinance, and shall not contain sexually oriented photographs, silhouettes, or other pictorial representations;

5. All entrances to an adult business shall be clearly and legibly posted by a notice indicating that minors are prohibited from entering the premises;

6. No residential structure, apartment, living quarters or mobile home shall be located on the parcel where an adult business is located.

B. The following performance standards shall apply to all adult businesses:

1. No entertainer shall perform live entertainment for patrons of an adult business except upon a stage at least eighteen inches above the level of the floor. "Entertainer" shall mean any person who is an employee or independent contractor of the adult business, or any person who, with or without any compensation or other form of compensation, performs live entertainment for patrons of an adult business;

2. The adult business shall provide dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use;

3. The adult business shall provide an entrance/exit for entertainers which is separate from the entrance/exit used by patrons;

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

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

6. Fixed rail(s) at least thirty inches in height shall be maintained establishing the separations between entertainers and patrons required by this subsection;

7. No adult business shall permit any person on the premises of the adult business to engage in a live showing of the human male or female genitals or pubic region, or buttocks with less than a fully opaque coverage, and/or the female breast with less than a fully opaque coverage over any part of the nipple areola and/or covered male genitals in a discernable erect state;

8. The adult business shall not conduct or sponsor any special events, promotions, festivals, concerts, or similar activities which would create a demand for parking spaces beyond the number of spaces required for the business;

9. The traffic generated by the adult business shall not overload the capacity of the surrounding street system and shall not create a hazard to public safety;

10. No adult business shall be operated in any manner that permits the observation of any persons or material depicting, describing or related to "specified sexual activities" or "specified anatomical areas", inside the premises, 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;

11. No loudspeakers or sound equipment shall be used by an adult business for the amplification of sound to a level audible beyond the walls of the building in which the business is located;

12. All buildings (including exterior walls), landscaping, and parking areas of the adult business shall be kept free of trash and debris and maintained in a clean and orderly manner at all times;

13. Adult business shall not operate between the hours of 12:01 a.m. and 5:59 a.m. on any day of the week;

14. Adult businesses shall not sell or display "obscene matter," as that term is defined by Penal Code Section 311 or its successors, and shall not exhibit "harmful matter," as that term is defined by Penal Code Section 313 or its successors, to minors.

(Ord. 02-012, § 1)

No adult business shall commence operation until an adult business license is issued in accordance with the provisions of this chapter.

(Ord. 02-012, § 1)

A. Written applications for a license under this chapter shall be made to the treasurer-tax collector of the county, on forms acceptable to the treasurer-tax collector, accompanied by a nonrefundable fee as specified in Section 3002 of the County of Fresno Master Schedule of Fees, Charges and Costs Recovery. Fees or costs incidental to the filing of a complete application or to meet other provisions of this chapter are not included in the application fee. The application shall be signed by the business owner(s) or agent. The application shall include the following:

1. The name, business address and business telephone number for the applicant. If the applicant is a corporation, the name shall be exactly as set forth in its articles of incorporation, and the applicant shall show the name and business address of each of the officers, directors, and each stockholder owning twenty-five percent or more of the stock of the corporation. If the applicant is a partnership, the application shall show the name and business address of each of the members, including limited partners;

2. Name(s) and business address(es) of the property owner(s);

3. Assessor's parcel number(s);

4. Legal description of the property and business address if available;

5. A site development plan drawn at the scale of one inch equals ten feet, which includes the following information:

a. Location and use of all existing buildings, structures, and improvements on the property,

b. Location and use of all proposed buildings, structures, and improvements on the property,

c. Existing and proposed streets and highways bordering and within the boundaries of the property,

d. Location of existing and proposed parking spaces and circulation areas,

e. Proposed landscaping,

f. North arrow,

g. Scale.

6. Elevations and floor plans drawn to scale of one quarter inch to one foot for proposed buildings or structures, including any existing or proposed signs related to the adult business;

7. A narrative description of the proposed use or development including:

a. Description of the nature of the proposed use or development and an explanation of how the proposed business will satisfy the applicable requirements set forth in Sections 6.33.020 through 6.33.040 of this chapter.

8. The notarized signature of all property owners of the proposed site indicating the owners' consent to the application;

9. A vicinity map drawn to a scale of one inch equals two hundred feet, showing specific land uses such as houses, churches, public buildings, etc. and parcel lines for a one thousand foot radius of the subject site;

10. The fee prescribed by the board of supervisors by ordinance or resolution for processing the application.

B. An applicant (or corporate officers, directors, stockholders, or partners) and any person employed in any capacity by an adult business, are required to be fingerprinted and photographed by the sheriff's department.

(Ord. 02-012, § 1)

A. License applications shall be processed by the treasurer-tax collector with investigation and reports by the human services system, planning and resource management department, and sheriff's department in accordance with this title. Such reports shall be submitted to the treasurer-tax collector not later than forty working days from the date of distribution of the application.

In considering an application for a license pursuant to this chapter, the treasurer-tax collector shall approve the license only upon the following findings:

1. The adult business is consistent with the location requirements and development and performance standards contained in this chapter;

2. The adult business is located in any of the following zoning districts: M-1, M-2, and M-3;

3. The adult business parcel does not contain any apartments or other living quarters;

4. The human services system certifies they made an inspection of the premises for the purpose of ascertaining the sanitary, health and safety conditions thereof;

5. The sheriff's department has certified that the applicant (or corporate officers, directors, stockholders, or partners), and employees of the adult business, have not been convicted of a "specified criminal act" for which:

a. less than two years have elapsed since the date of conviction, the date of release from confinement, the date of release from probation or parole, whichever is the later date, if the conviction is of a misdemeanor offense, and

b. less than five years have elapsed since the date of conviction, the date of release from confinement, the date of release from probation or parole, whichever is the later date, if the conviction is of a felony offense.

"Specified criminal act" means acts which are sexual crimes against children, sexual abuse, rape, distribution of obscenity or material harmful to minors, prostitution, pandering, tax violations, money laundering, possession or distribution of controlled substances, fraud, and other acts for which a nexus can be demonstrated between the act and denial of a license.

The treasurer-tax collector shall approve or deny the license within sixty working days from the date of filing of the application. Upon request or consent of the applicant, the sixty day period may be extended for a reasonable time.

The treasurer-tax collector shall, upon receiving the application and the reports from the sheriff's department, planning and resource management department, and the human services system, issue the license in the event of compliance with the location and other requirements of this chapter. In the event the report of any or all agencies is adverse to the issuance of the license, the treasurer-tax collector shall refuse to issue the license. The treasurer-tax collector's decision to approve or deny a license shall be final and conclusive. There shall be no appeal to the county planning commission or the board of supervisors.

The applicant may seek judicial review of the treasurer-tax collector's denial of an application as provided by California Code of Civil Procedure Section 1094.8 or its successor.

(Ord. 02-012, § 1)

An applicant shall permit representatives of the treasurer-tax collector, human services system, planning and resource management department, and sheriff's department to inspect the premises proposed for an adult business for the purpose of insuring compliance with this chapter or other applicable laws, at any time it is occupied or open for business.

(Ord. 02-012, § 1)

A licensee shall not transfer ownership or control of an adult business license to any other person or entity. All changes in ownership shall require a new license application and approval.

(Ord. 02-012, § 1)

Each adult business license under this chapter shall be issued to expire on June thirtieth, provided that no license shall be issued to expire more than one year from the date of issuance. When a license is issued during any licensing period, the treasurer-tax collector shall prorate the license fee as of the first of the month nearest to the date of issuance.

A license may be renewed only by filing with the treasurer-tax collector a written request for renewal accompanied by a new application, copy of the license to be renewed and the applicable fee. The request for renewal shall be made at least sixty working days before the expiration date of the license. When made less than sixty days before the expiration date, the expiration of the license shall not be stayed. Applications for renewal shall be acted on as provided herein for action upon application for licenses.

(Ord. 02-012, § 1)

Any adult business existing on the effective date of this ordinance, which does not conform to the provisions of this chapter, but which was constructed, operated, and maintained in compliance with all previous regulations, shall be regarded as a nonconforming use which may be continued until one year after the effective date of this ordinance. On or before such date, all such nonconforming uses shall be terminated unless an extension of time has been approved by the treasurer-tax collector in accordance with the provisions of Section 6.33.120.

A. Abandonment. Notwithstanding the above, any abandonment of the use of any lot or structure as an adult business shall result in a loss of legal nonconforming status of such use. Abandonment shall be deemed to have occurred if an adult business is and remains closed to the public continuously for fifteen calendar days.

B. Amortization—Effect of Subsequent Development. Any adult business which obtains a license as provided herein, but which does not conform to the provisions of Section 6.33.030 because of subsequent development near the adult business, e.g., construction of a school, church, or residence, shall be terminated within one year of occupancy of the subsequent development unless an extension of time has been approved by the treasurer-tax collector in accordance with the provisions of Section 6.33.120.

(Ord. 02-012, § 1)

In amortization situations described in Section 6.33.110, the owner or operator of an adult business may apply under the provisions of this section to the treasurer-tax collector for an extension of time within which to terminate the adult business. Such applications must be filed with the treasurer-tax collector at least ninety days but no more than one hundred eighty days prior to the time established in Section 6.33.100 for termination of the adult business. Such application shall be processed by the treasurer-tax collector with investigation and recommendation by the human services system, planning and resource management department, and sheriff's department.

An extension under the provisions of this section shall be for a reasonable period of time not exceeding one year, commensurate with the investment involved, and shall be approved only if the treasurer-tax collector makes all of the following findings, and after investigation and recommendation by the aforementioned county departments:

1. The applicant has made a substantial investment in the property or structure on or in which the adult business is conducted; and such property or structure cannot be readily converted to another use;

2. The applicant will be unable to recoup said investment as of the date established for termination of the adult business; and

3. The applicant has made good faith efforts to recoup the investment and to relocate the adult business to a location in conformance with Section 6.33.030.

(Ord. 02-012, § 1)

A. No person shall engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in an adult business without a valid performer license issued by the sheriff's department.

B. The sheriff's department shall grant, deny and renew performer licenses.

C. The application for a performer license shall be on a form provided by the sheriff's department.

D. The completed application shall contain the following information and be accompanied by the following documents:

1. The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant;

2. Age, date and place of birth;

3. Height, weight, hair and eye color;

4. Present residence address and telephone number;

5. Whether the applicant has within the two or five year period specified in Section 6.33.070(A)(5)(a) and (b) immediately preceding the date of the application, been convicted of a specified criminal act, and, if so, the specified criminal act involved, the date of conviction and the place of conviction;

6. Whether such person is or has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other jurisdiction to engage in prostitution in such other jurisdiction. If any person mentioned in this subsection has ever been licensed or registered as a prostitute, or otherwise authorized by the laws of any other state to engage in prostitution, a statement shall be submitted giving the place of such registration, licensing, or legal authorization, and the inclusive dates during which such person was so licensed, registered, or authorized to engage in prostitution;

7. State driver's license or identification number and social security number;

8. Satisfactory written proof that the applicant is at least eighteen years of age;

9. Whether the applicant has had a previous similar license under this ordinance or other similar ordinances from another city or county denied, suspended or revoked, including the name and lotion of the adult business for which the license was sought and denied, suspended or revoked, as well as the date of the denial, suspension or revocation;

10. The applicant's fingerprints on a form provided by the sheriff's department, and a color photograph clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant. The applicant shall authorize the sheriff's department to obtain any available criminal offender record information relating to the applicant;

11. If the application is made for the purpose of renewing a license, the applicant shall attach a copy of the license to be renewed.

E. Within five business days after receipt of the properly completed application, the sheriff's department shall either grant or deny the application, or grant a temporary license, and so notify the applicant as follows:

1. The sheriff's department shall write or stamp "granted," "denied" or "temporary license granted" on the application and date and sign such notation;

2. If the application is denied, the sheriff's department shall attach to the application a statement of the reasons for denial;

3. If the application is granted, whether temporarily or not, the sheriff's department shall attach to the application a performer license;

4. If a temporary license is granted, the sheriff's department shall complete its investigation of the applicant within forty-five days after receipt of a properly completed application and notify the applicant of whether the license will be granted or denied. The temporary license shall be valid until the application is granted or denied, unless revoked in accordance with this section;

5. The application is granted or denied and the license, if any, shall be placed in the United States mail, first class postage prepaid, addressed to the applicant at the residence address stated in the application.

F. The sheriff's department shall grant the application and issue the license unless the application is denied for one or more of the reasons set forth in this section.

G. If the sheriff's department grants the application or if the sheriff's department neither grants nor denies the application within the times specified in this section after it is stamped as received, the applicant shall be deemed to have a license and may begin acting or performing in the capacity for which the license was sought, subject to the right of the sheriff's department to act upon the license within the forty-five day investigation period even if the sheriff's department has failed to act within five business days, and subject to the grounds for revocation set forth in this section.

H. The sheriff's department shall deny the application for any of the following reasons:

1. The applicant has knowingly made any false, misleading, or fraudulent statement of a material fact in the application for a license or in any report or document required to be filed with the application;

2. The applicant is under eighteen years of age;

3. The performer license is to be used for acting or performing in a business prohibited by state or county law;

4. The applicant has been registered in any state as a prostitute;

5. The applicant has been convicted of a "specified criminal act" for which:

a. less than two years have elapsed since the date of conviction, the date of release from confinement, the date of release from probation or parole, whichever is the later date, if the conviction is of a misdemeanor offense, and

b. less than five years have elapsed since the date of conviction, the date of release from confinement, the date of release from probation or parole, whichever is the later date, if the conviction is of a felony offense.

6. The applicant had any type of adult business operator or performer license revoked by any public entity within the preceding three years.

I. The sheriff's department decision to deny or grant an application for license shall be final and conclusive. There shall be no appeal to the board of supervisors. The applicant may seek judicial review within ninety days of the sheriff's department denial in accordance with California Code of Civil Procedure Section 1094.6.

J. Each performer license shall expire one year from the date of issuance and may be renewed by filing with the sheriff's department a written request for renewal, and a copy of the license to be renewed. The request for renewal shall be made at least this days before the expiration date of the license. When made less than thirty days before the expiration date, the expiration of the license will not be stayed. Applications for renewal shall be acted on as provided herein for applications for licenses.

K. The sheriff's department may suspend or revoke a license for any of the following reasons:

1. An adult business performer has engaged in one of the activities described below while on the premises of an adult business:

a. any act of sexual intercourse, sodomy, oral copulation or masturbation,

b. use of the establishment as a place for unlawful solicitations for sexual intercourse, sodomy, oral copulation or masturbation,

c. a specified criminal act,

d. any conduct prohibited by this chapter,

e. any of the enumerated reasons which would have been grounds for denying the license in the first instance.

(Ord. 02-012, § 1)

If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The board of supervisors hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, phrases or portions be declared invalid or unconstitutional. If for any reason this or any part thereof shall be declared invalid or unconstitutional, then all other provisions thereof shall remain valid and enforceable.

(Ord. 02-012, § 1)

Chapter 6.04 (General Provisions) of Title 6 is incorporated herein by this reference including but not limited to license revocation, license display, and criminal penalties for violation.

(Ord. 02-012, § 1)

In addition to the penalties imposed by Section 6.33.140, a person who operates or causes to be operated an adult business without a valid license is subject to a suit for injunction.

(Ord. 02-012, § 1)

Any adult business already operating in the M-1, M-2, and M-3 industrial zoning districts on the date of first reading of this ordinance is exempt from this ordinance in its entirety.

(Ord. 02-012, § 1)