Hesperia Municipal Code Art. IX Development Standards for Adult Entertainment Business

It is the intent of these regulations to mitigate or prevent community wide problems of blight and deterioration which can be brought about by the concentration of adult entertainment businesses in close proximity to each other or proximity to other incompatible uses such as schools for minors, public parks and residentially zoned districts. The city council finds that it has been demonstrated in various communities that the concentration of adult entertainment businesses causes an increase in the number of transients in the area, an increase in crime, and can cause other businesses and residents to move elsewhere because of harmful secondary effects of such businesses. It is, therefore, the purpose of these regulations to establish reasonable and uniform regulations to prevent the concentration of adult establishments or their close proximity to incompatible uses, while permitting the location of adult businesses in certain areas.

(Ord. 266 § 3 (part), 1998)

A. It is the intent of this article that the definitions set forth in the Hesperia development code shall apply but only where they do not conflict with any definition set forth in this article.

B. Establishment of an Adult Entertainment Business. As used herein, to "establish" an adult entertainment business means and includes any of the following:

1. The opening or commencement of operation of any adult entertainment business as a new business.

2. The conversion of any existing business, whether or not an adult entertainment business, to any adult entertainment business as described herein.

3. The addition of any adult entertainment business as defined herein to any existing adult entertainment business if the addition results in expansion of the place of business. For purposes of this paragraph, "expansion" means any increase in the size of the building within which the business is conducted by either construction or use of an adjacent building or any portion thereof, or any temporary facility or area, whether located on the same or an adjacent lot or parcel of land.

C. Specified Anatomical Areas. As used herein, "specified anatomical areas" means and includes any of the following:

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

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

3. Any device, costume, or covering that simulates any of the body parts specified in subdivisions 1 or 2 of this subsection.

D. Specified Sexual Activities. As used herein, "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, actually or simulated, of human genitals, pubic region, buttock or female breast;

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

3. Masturbation, actual or simulated; or

4. Excretory functions as part of or in connection with any of the activities set forth in subdivisions 1 through 3 of this subsection.

E. Adult Entertainment Establishment. An "adult entertainment establishment" is any place of business in which one or more of the following activities are conducted:

1. "Adult bookstore" means a commercial establishment which, as a regular and substantial part of its business, devotes inventory or product lines for display, shelf, rack, table, stand, or floor area used for the display and sale of the following:

a. Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video cassettes, slides, tapes, records, or other forms of visual or audio representation which are characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomical areas"; and/or

b. Instruments, artificial devices or paraphernalia which are designed for use in connection with "specified sexual activities." The term "product line" refers to items which are all identical, such as numerous copies of the same book or periodical.

2. "Adult motion picture establishment" means a commercial establishment with a capacity of more than fifty (50) persons, used for the presentation, exhibition or display of films, motion pictures, video cassettes, slides or similar photographic reproductions projected on a screen, which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas." For purposes of this subdivision and subdivisions 3, 4, 5, 6, 7, 8 and 12, "substantial portion of the total presentation time" means a regular and substantial course of conduct.

3. "Adult mini-motion picture theater" means a commercial establishment with a capacity of more than five but less than fifty (50) persons, used for the presentation, exhibition or display of films, motion pictures, video cassettes, slides or similar photographic reproductions projected on a screen, and in which a substantial portion of the presentation time is distinguished or characterized by an emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas."

4. "Adult motion picture arcade" means any place to which the public is permitted or invited wherein coin or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, in which a substantial portion of the presentation time is distinguished or characterized by an emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas."

5. "Adult drive-in theater" means an open lot or part thereof, with appurtenant facilities, devoted primarily to the presentation of motion pictures, films, theatrical productions and other forms of visual productions, for any form of consideration to persons in motor vehicles or on outdoor seats, in which a substantial portion of the total presentation time of the material being presented is distinguished or characterized by an emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas."

6. "Adult cabaret" means a nightclub, bar, restaurant or similar establishment during which a substantial portion of the total presentation time features live performances which are distinguished or characterized by an emphasis on "specified sexual activities" or by exposure of "specified anatomical areas" and/or feature films, motion pictures, video cassettes, slides or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities" or "specified anatomical areas" for observation by patrons.

7. "Adult motel or hotel" means a hotel or motel or similar commercial establishment offering public accommodations for any form of consideration which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions, a substantial portion of the presentation time of which is distinguished or characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomical areas" for observation by patrons.

8. "Adult theater" means a theater, concert hall, auditorium, or similar commercial establishment either indoor or outdoor in nature which, for any form of consideration, regularly features live performances, a substantial portion of the total presentation time of which is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas" for observation by patrons.

9. "Adult model studio" means any establishment open to the public where, for any form of consideration or gratuity, figure models who display "specified anatomical areas" are provided to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by persons, other than the proprietor, paying such consideration or gratuity.

This provision shall not apply to any school of art which is operated by an individual, firm, association, partnership, corporation or institution which meets the requirements established in the Education Code of the state of California for the issuance or conferring of, and is in fact authorized thereunder to issue and confer, a diploma.

10. "Sexual encounter establishment" means a commercial establishment, other than a hotel, motel or similar establishment offering public accommodations which, for any form of consideration, provides a place where two or more persons may congregate, associate, or consort in connection with "specified sexual acts" or the exposure of "specified anatomical areas."

This definition does not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the state of California engages in sexual therapy.

11. "Body painting studio" means any establishment or business which provides the service of applying paint or other substance whether transparent or nontransparent to or on the human body when such body is wholly or partially nude in terms of "specified anatomical areas."

12. "Other adult entertainment businesses" means any other business or commercial establishment not herein defined:

a. Wherein for any form of consideration the establishment provides entertainment to patrons in which a substantial portion of the total presentation time is characterized by an emphasis on depicting, describing or relating to "specified sexual activities" or "specified anatomical areas"; or

b. Which devotes more than fifty (50) percent of the total area used for display of its stock in trade to items, instruments and paraphernalia which are characterized by an emphasis on depicting, describing, or relating to "specified sexual activities";

c. "Characterized by an emphasis upon" means the dominant or essential theme of the object described by such theme.

13. "Lingerie modeling studio" means an establishment where, for any form of consideration, lingerie is modeled by a person or persons for viewing by persons paying such consideration.

(Ord. 266 § 3 (part), 1998)

For the purpose of these regulations, adult uses are permitted uses only in those areas of the city designated on the land use element of the Hesperia general plan as industrial/commercial and as set forth herein. In addition to the standards imposed herein, the development standards applicable to the establishment of an adult business shall be as set forth in the Hesperia development code for a zone and use most comparable to the proposed adult business, as determined by the planning director.

(Ord. 266 § 3 (part), 1998)

No adult entertainment establishment shall be established within specified distances of certain specified land uses as set forth below:

A. No such establishment shall be established within five hundred (500) feet of any other adult entertainment establishment.

B. No such establishment shall be established within five hundred (500) feet of any residence, residential zone, church, chapel or similar place of worship, any funeral parlor, mortuary or similar facility, any school, licensed day care center, hospital, clinic or medical facility, park, playground or any other recreational facility where large numbers of minors travel or congregate.

C. No such establishment shall be established within one thousand (1,000) feet of the centerline of Interstate 15 or the centerline of Main Street.

(Ord. 266 § 3 (part), 1998)

The distance between any two adult entertainment establishments shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall off each business. The distance between any adult entertainment establishment and any school, day care facility, public park or residential zone, etc., shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of the adult entertainment business to the closest property line of the school, day care facility, public park, or residential zone.

(Ord. 266 § 3 (part), 1998)

No adult use or adult entertainment business shall maintain closed areas, booths, cubicles, rooms or other areas within its place of business that are used, designed, or furnished for private sexual activity. No nudity or specified sexual activities by customers shall be permitted on the premises. All portions of the premises shall be available by access and visual inspection at all times during normal business hours by representatives of the sheriffs department, health department, fire department or any city inspectors for the purpose of insuring compliance with all applicable laws.

(Ord. 266 § 3 (part), 1998)

It is unlawful to establish or operate, or cause to permit to be operated, any adult entertainment establishment without first obtaining an adult entertainment zoning permit from the planning director.

(Ord. 266 § 3 (part), 1998)

A. Any person, association, partnership, corporation or other entity desiring to obtain an adult entertainment zoning permit shall file an application with the director on a form provided by the director. The application shall be accompanied by a nonrefundable application processing fee in the amount established by city council resolution.

B. The application for a permit shall contain the following information:

1. The name, address and telephone of the applicant. If the applicant is a corporation, the applicant shall set forth the name of the corporation exactly as shown in its articles of incorporation, the date and place of incorporation, the names and addresses of the officers, directors, and each stockholder owning more than ten percent of the stock of the corporation. If the applicant is a partnership, the applicant shall set forth the name and residence address of each of the partners, including limited partners. If one or more of the partners is a corporation, the provision of this section pertaining to a corporate applicant shall apply. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer.

2. Name, address and telephone number of the person who shall manage and operate the establishment for which the permit is requested. The name and address of a person authorized to accept service of legal notices.

3. The proposed business name of the adult entertainment establishment and description of the type of adult establishment.

4. Street address of the proposed adult entertainment establishment and parcel number for the property.

5. A plot plan for the property depicting the location of the building housing the adult entertainment establishment on the property.

6. If the adult entertainment establishment was in existence as of the effective date of these regulations, the date the establishment first commenced operation.

7. Any other information reasonably necessary to accomplish the purposes of these regulations.

8. The signature of the record owners of the property consenting to the establishment of an adult entertainment business.

9. A statement signed by the applicant that he or she has not had an adult entertainment business permit or substantially similar permit, revoked or suspended by any governmental jurisdiction in the previous twelve (12) calendar months and a statement, under penalty of perjury, that the information submitted is true and correct.

C. Referral to Other City Departments. The director may refer the application to other city departments to determine whether the premises where the adult entertainment establishment is located, or will be located, complies with the city's building, health, zoning and fire ordinances or other applicable ordinances or laws. City departments may conduct an inspection of the premises to determine compliance with the ordinances and laws they administer.

D. Action on Application. The director shall determine whether to grant or deny the permit within thirty (30) working days after receipt of a complete application.

(Ord. 266 § 3 (part), 1998)

A. The director shall approve the permit unless he or she determines from a consideration of the application, city inspection of the premises or other pertinent information that:

1. Information contained in the application or supplemental information requested from the applicant is false in any material detail.

2. The proposed location of the adult entertainment business would not comply with the requirements of Section 16.20.325 or 16.20.330.

3. The operation of the adult entertainment business is or will be in violation of one or more provisions of these regulations.

4. The premises where the adult entertainment business is or will be located does not comply with all applicable laws, including but not limited to the city's building, health, zoning, and fire ordinances.

5. That a permit to operate any adult entertainment establishment has been issued to the applicant, a partner of the applicant, or a stockholder of the applicant which stockholder owns more than ten percent of the applicant's corporate stock, which permit has been suspended and the period of suspension has not yet ended.

B. Notice of permit denial shall be in writing and shall state the grounds therefor, and notify the applicant of the applicant's right to appeal. Notice shall be personally served on the permit applicant or mailed to the address listed on the application form.

C. After notice and a hearing, an adult entertainment permit may be suspended for up to one year or revoked for any of the reasons specified as grounds for permit denial in subsection (A) of this section.

D. Any interested person may appeal a decision of the director as provided for in Section 16.12.055 of the development code.

(Ord. 266 § 3 (part), 1998)

The director may condition the issuance of an adult entertainment zoning permit by imposing reasonable conditions to insure compliance with these provisions and other sections of the Hesperia Municipal Code.

(Ord. 266 § 3 (part), 1998)

A. No permit issued pursuant to this article may be assigned or transferred without the prior written approval of the director. The applicant shall apply for a transfer on a form provided by the director, and shall pay a nonrefundable application processing fee in the amount established by city council resolution.

B. Transfer of Partnership or Corporate Ownership. An application for approval of a transfer of a permit shall be required prior to any change in an interest in a partnership or ownership of ten percent or more of the stock of a corporation to any person not listed on the application filed by said applicant.

C. An application for transfer of a permit may be denied for any of the grounds specified for denial of an original permit application in Section 16.20.355. Procedures for notice of denial of a transfer and appeal thereof shall be identical to those procedures for denial of a permit application specified in Section 16.20.355.

(Ord. 266 § 3 (part), 1998)

The permittee must apply for a new adult entertainment permit as follows:

A. Prior to any change in the location of the adult entertainment establishment.

B. Prior to the conversion of any existing adult entertainment establishment to any other type of adult entertainment establishment as described herein.

C. Prior to any change in the business name of the adult entertainment establishment.

D. Prior to the enlargement of any existing adult entertainment establishment.

(Ord. 266 § 3 (part), 1998)

Each person to whom or for who a permit has been granted shall display said permit in a conspicuous place within the adult entertainment establishment so the same may be readily seen by persons entering the premises.

(Ord. 266 § 3 (part), 1998)

A. Who May Appeal. Any interested person may appeal the issuance, denial of issuance, suspension or revocation of an adult entertainment permit to the city council in accordance with the provisions of this section.

B. Appeal Period. A written appeal petition must be filed with the city clerk no later than fourteen (14) calendar days after the decision sought to be appealed; provided, however, that if fourteen (14) days expires on a date that city hall is not open for business, then the appeal period shall be extended to the next business day. Failure to file a timely appeal petition deprives the city council of jurisdiction to hear the appeal.

C. Form of Appeal Petition. The appeal petition must indicate why the applicant contends the decision was incorrect or must provide extenuating circumstances which the applicant contends would justify reversal or modification of the decision. A fee in an amount established by resolution of the city council shall be submitted with the appeal petition.

D. Stay of Decision. The effectiveness of any decision to suspend or revoke an adult entertainment permit shall be stayed during: (1) the appeal period set forth in subsection (B) of this section; and (2) the pendency of any appeal.

E. City Council Consideration. The city council shall consider a timely filed appeal at its first available regular meeting following submission of the appeal, unless the applicant consents in writing to an extension. At least ten days prior to the appeal hearing before the city council, written notice of such hearing shall be mailed to the applicant. The city council may continue the appeal hearing as necessary or convenient.

F. City Council Decision. No later than forty-five (45) days from the filing of a timely appeal, unless the appellant consents in writing to an extension, the city council shall render a decision on the appeal. The city council may affirm, modify or reverse the decision being appealed. The decision of the city council shall be made by resolution and shall be final. No later than three city business days after the city council's decision, notice of the decision and a copy of the resolution 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 may be sought is governed by California Code of Civil Procedure Section 1094.6."

G. Judicial Review. The appellant may seek judicial review of the city council's decision in accordance with California Code of Civil Procedure Section 1094.5 et seq., or as otherwise permitted by law.

(Ord. 266 § 3 (part), 1998)