Hesperia Municipal Code Ch. 5.48 Adult Businesses

Footnotes:

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Editor's note— Ord. No. 2019-10, § 3(Exh. A), adopted August 20, 2019, amended ch. 5.48 in its entirety to read as herein set out. Former ch. 5.48, §§ 5.48.010—5.48.160, pertained to sexually-oriented businesses, and derived from Ord. 129 §§ 2, 4—17, 1991; Ord. 250 (part), 1997; Ord. No. 2014-15, § 2, 8-19-14.

It is the purpose of this chapter to regulate adult businesses in order to promote the health, safety, and general welfare of the citizens of the city. The purpose of this chapter is not to impose a limitation or restriction on the content of any communicative materials, including adult materials. Similarly, it is not the intent 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.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. Any person desiring to own, operate, commence, transact, or otherwise allow the operation of an adult business shall apply for and receive an adult business license pursuant to this chapter.

B. It is unlawful for any person to operate an adult business or to enlarge such a business by a twenty-five (25) percent or greater floor area without a valid adult business license for the particular type of business.

C. An application for an adult business license must be completed on a form provided by the city and shall not be deemed complete unless all of the following information is provided. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business that is open to the public, including the percentage of floor space dedicated to adult merchandise. The sketch or diagram need not be professionally prepared but must be drawn to scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.

D. The applicant must be qualified according to the provisions of this chapter and the premises must be inspected and found to be in compliance with all applicable laws and regulations by all applicable state, county, and city departments. Such inspection shall be conducted by the city within two weeks of receipt of a complete application. The applicant shall be advised as to whether or not the premises are in compliance with all applicable laws and regulations within fourteen (14) days of such inspection. If the premises are found not to be in compliance, the applicant shall be served with a notice of noncompliance stating what specific actions must be taken to achieve compliance. The applicant shall have six months thereafter to achieve compliance pursuant to Section 5.48.060(B). No license shall be issued until compliance has been obtained. If the premises are not timely brought into compliance, the application shall be deemed denied.

E. If a person who wishes to operate an adult business is an individual, he or she must sign the application for a license as applicant. If a person who wishes to operate an adult business is other than an individual, each individual who has a ten percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under Section 5.48.050 and each applicant shall be considered a licensee if a license is granted.

F. Possession by an applicant of any other type of required license does not exempt such applicant from the requirement of obtaining an adult business license

G. The applicant(s) shall furnish a LiveScan clearance issued by the Department of Justice (DOJ) prepared within thirty (30) days of submission of a complete application.

H. The application shall be signed by the applicant(s) and shall contain a declaration made under penalty of perjury that the information provided is true and correct. If the application is by any person who is not an individual, all individuals who have a ten percent or greater interest in the business must sign such a declaration.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. Except as provided in Section 5.48.060(B), the city shall issue a license to an applicant within thirty (30) days after receipt of a complete application and approved inspection, unless one or more of the following is found to be true:

1. An applicant is under eighteen (18) years of age;

2. An applicant has failed to pay to city any taxes, fees, fines or penalties previously assessed or imposed in relation to an adult business within the five years preceding the application;

3. An applicant has failed to provide information required by this chapter or has knowingly falsely answered a question or request for information on the application form. This shall include misleading or incomplete responses;

4. An applicant has been convicted of a violation of a provision of this chapter within two years immediately preceding the application. The fact that a conviction is being appealed shall have no effect;

5. The license fee required by this chapter has not been paid;

6. The proposed establishment is in violation of or is not in compliance with Sections 5.48.070 or 5.48.080

7. An applicant has, within the preceding five years, been convicted of, or is under indictment or is currently awaiting trial for a crime involving or constituting any violation of the following (including lesser offenses, and equivalent offenses under federal law or the laws of other states):

a. Prostitution or solicitation of prostitution, (Penal Code 653.22)

b. Pandering or pimping, (Penal Code 266)

c. Obscenity as defined under California law,

d. Sale, distribution or display of harmful material to minors, (Penal Code 313.1)

e. Sexual assault, (Penal Code 243.4)

f. Running a house of prostitution, (Penal Code 315)

g. Any offense that requires registration as a Sex Offender, (Penal Code 290)

h. Child Pornography, (Penal Code 311.11).

B. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.

C. The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the adult business. The license shall be posted in a conspicuous place at or near the entrance to the adult business so that it may be easily read at any time.

D. A licensee shall report, in writing, any material change in information provided in the application to the city within five days of such change.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. The license fee for an adult business license shall be as established by resolution of the city council.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. An applicant or licensee shall permit representatives of any applicable state, county, or city departments to inspect the premises of the business for the purpose of ensuring compliance with all applicable laws, during normal business hours.

B. A person who operates an adult business, or his agent or employee, commits an offense if he or she refuses to permit a lawful inspection of the premises by any city enforcement agent or any representative of the sheriff's department who is entering the premises to inspect pursuant to this chapter, or any other state, local, or other applicable laws at any time it is open for business.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. Each license shall expire one year from the date of issuance and may be renewed only through successful completion of the application process provided in this chapter.

B. In the event the city manager denies a new license or renewal of a license, the applicant shall not be issued a license for one year from the date of denial; unless, subsequent to denial, the city manager finds that the basis for denial of the license or renewal has been corrected or abated, in which event the applicant will be granted a license if at least ninety (90) days have elapsed since the date denial became final.

C. In the event that the issues resulting in the denial of the license are not corrected or abated, the business must close by the conclusion of the appeal period, in the event no appeal is filed. Should an appeal be filed, and the violation is upheld, the business must close within forty-eight (48) hours following the conclusion and decision of the appeal.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. The city manager may suspend a license, which suspension shall not become effective until expiration of the appeal period provided herein, or until an appeal has been denied, whichever is later, for a period not to exceed thirty (30) days if he or she determines that a licensee or an employee of a licensee has:

1. Violated or is not in compliance with any applicable section of this chapter;

2. Refused to allow an inspection of the business premises as authorized by this chapter;

3. Served alcohol on the business premises without having all legally required licenses or permits;

4. Failed to comply with, or has knowingly permitted any violation of, any provision of city's building, fire, electrical, plumbing or housing code after receipt of notice from city of such violation.

B. Notwithstanding any other provision herein, an adult business license may be suspended in the event the city manager determines that there is an immediate and serious threat or risk of harm to the public health, safety, or welfare. If the license is suspended due to a determination of immediate and serious threat or harm to the public health, safety, or welfare, a public hearing following suspension shall be conducted at the next regularly scheduled city council meeting to determine whether or not such public threat or risk of harm has been eliminated.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. The city manager may revoke a license if a cause of suspension in Section 5.48.070 occurs and the license has previously been suspended within the preceding twelve (12) months.

B. The city manager may revoke a license if he or she determines that:

1. A licensee knowingly gave false or misleading information in the material submitted during the application process;

2. A licensee or an employee has allowed possession, use, or sale of illegal controlled substances on the premises;

3. A licensee or an employee has allowed prostitution on the premises;

4. A licensee or an employee knowingly operated the adult business during a period of time when the licensee's license was suspended;

5. A licensee has been convicted of an offense listed in Section 5.48.030(A)(7) for which the time period required in Section 5.48.030(A)(7) has not elapsed;

6. On two or more occasions within a twelve (12) month period, a licensee or employee committed an offense on the licensed premises, listed in Section 5.48.030(A)(7), for which a conviction has been obtained;

7. A licensee or an employee has allowed any act of sexual intercourse, sodomy, oral copulation, or masturbation on the licensed premises.

C. The fact that a conviction is being appealed shall have no effect on the revocation of the license.

D. When the city manager revokes a license, the revocation shall continue for one year and the licensee may not apply for another adult business license for one year from the date revocation became effective; unless, subsequent to revocation, it is found and substantiated by the city that the basis for the revocation has been corrected or abated, in which event the applicant may be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. If the license was revoked under subsection (B)(5), an applicant may not be granted another license until the appropriate number of years required under Section 5.48.030(A)(7) has elapsed.

E. Any revocation shall not become effective until expiration of the appeal period provided herein, or until any appeal has been denied, whichever is later.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

If the city manager denies the issuance or renewal of a license, or suspends or revokes a license and the suspension is not pursuant to Section 5.48.070(B), the license holder may appeal the revocation following the procedures of Section 5.04.150.

The filing of an appeal stays suspension or revocation until the city council makes a final decision.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A licensee shall not transfer his or her license to another person or business, nor shall a licensee operate an adult business under the authority of a license at any place other than the address designated in the application and license. Any license purportedly transferred shall be deemed by law to be voluntarily surrendered and of no force or effect.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. Nude model studios shall not employ, nor otherwise allow nude modeling by, any person under the age of eighteen (18) years.

B. Except as otherwise provided by law, it is unlawful for any nude model studio to place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

Adult theaters and adult motion picture theaters are prohibited in all zoning districts of the City of Hesperia.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

Adult motels are prohibited in all zoning districts of the City of Hesperia.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)