Kern County Municipal Code Ch. 5.08 Adult Entertainment Business

No person shall own, operate, conduct or maintain an adult entertainment business in the unincorporated area of the county without first having obtained from the county sheriff a license therefor.

(Ord. G-6239 § 3 (part), 1995)

As used in this chapter:

A. "Person" means any individual, partnership, association, corporation or other entity.

B. "Adult entertainment business" means any of the following:

1. Any business where, as a substantial or significant course of conduct, explicit sexual materials are shown, displayed or exhibited on the premises to members of the public by means of any mechanical, lighting or electrical device whatsoever;

2. Any business where, as a substantial or significant course of conduct, members of the public are entertained on the premises by or in the presence of one (1) or more entertainers or any other person:

a. That engages in simulated explicit sexual conduct, or

b. If, with respect to any such entertainer or person the following actual or simulated conditions exist:

i. The genitals or pubic region or any part thereof are visible,

ii. All or any part of the cleavage of the buttocks is visible,

iii. The female breast is visible below a point immediately above the top of the areola, or

iv. The male genitals are in a discernibly turgid state even if completely and opaquely covered; or

3. Any business that, as a substantial or significant course of conduct, sells, offers for sale, rents, exhibits, shows, or displays explicit sexual material 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 relation to explicit sexual conduct.

C. A particular business at a particular location that sells, offers for sale, rents, exhibits, shows, or displays explicit sexual material 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 relation to explicit sexual conduct, and that receives in excess of twenty-five percent (25%) of its gross revenue from, or devotes in excess of twenty-five percent (25%) of the stock on hand or the square footage of the business that is open to the public to such activity, is presumed to be engaging in "a substantial or significant course of conduct" with respect to such activity.

D. "Explicit sexual material" means any of the following: depictions of sexual intercourse, oral copulation, anal intercourse, oral-anal copulation; bestiality, sexually oriented sadism or masochism, or excretory functions in conjunction with sexual activity, masturbation or lewd exhibition of the genitals, whether any of the above conduct is depicted or described as being performed alone or between members of the same or opposite sex or between humans and animals, or any other act of sexual arousal involving any physical contact with female breasts or a person's genitals, pubic region, pubic hair, perineum, anus or anal region.

E. "Explicit sexual conduct" means simulated, by person or inanimate object, sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, sexually oriented sadism or masochism, or excretory functions in conjunction with sexual activity, masturbation or lewd exhibition of the genitals, whether any of the above conduct is presented as being performed alone or between members of the same or opposite sex or between humans and animals, or any other act of sexual arousal involving any physical contact with female breasts or a person's genitals, pubic region, pubic hair, perineum, anus or anal region.

F. "Entertainer" means any person that in any way entertains members of the public at an adult entertainment business as defined in subsection (B)(2) of this section, either as an employee, agent or independent contractor of the business, that pays the business for the right to entertain on the premises, or that receives anything of value for, in connection with or by reason of having entertained the public on the business premises.

G. "School" means and includes an elementary school, junior high school or high school whether publicly or privately owned or operated. It shall include any project to construct a public school if the project has been approved by the Office of Public School Construction and any project to construct a private school if a building permit has been issued in the event either the approval or issuance occurs before a license is issued under this chapter. It shall include all buildings on the school premises and the adjacent and surrounding school grounds, campus, playgrounds and athletic fields owned or operated by the owner or operator of the school used or intended to be used by or for the benefit of the students for whose benefit such school is maintained.

H. "Residential zone" means any land in the unincorporated area of the county of Kern zoned R-1, R-2, R-3, E or MP or equivalent zoning in any adjacent jurisdiction.

I. "Proximity to," with respect to a residential zone, school, public park or church, means within a distance of one thousand five hundred (1,500) feet, measured in a straight line without regard to intervening structures, from the nearest point of the building in which the proposed adult business is to be established to the nearest property line of the residential zone, school, public park or church which are the subject of such measurement.

J. "Licensee" means and includes the applicant and each person listed in the application for the license pursuant to subsection (A)(1) of Section 5.08.030 as the person or persons who will manage or control the business, those persons actually managing the business and any agent or employee thereof actually working at the business premises.

K. "Church" shall be defined in accordance with Section 19.04.120 of this code.

(Ord. G-6239 § 3 (part), 1995)

A. Applications for a license under this chapter shall be on forms provided by the sheriff's department, shall be signed by the person having the majority financial interest in the adult entertainment business (a partner if the business is a partnership or an officer if the business is owed by a corporation), shall be signed under penalty of perjury and shall contain the following information:

1. The full, true name, current mailing address, title, current telephone number, date of birth, sex, driver's license number, and social security number of the applicant and of all persons who will manage or control the day to day operation of the business;

2. The name, mailing address and location of the business;

3. A list of the complete street addresses of other adult entertainment businesses owned or operated by the applicant or one (1) or more of the persons listed in subsection (A)(1) of this section in this state as of the date the application is filed;

4. Whether any person listed in subsection (A)(1) of this section has had a license issued under this chapter revoked within the twelve (12) months immediately preceding the filing of the application.

B. All applicants shall pay a nonrefundable processing and inspection fee of one hundred sixty-nine dollars ($169.00) which shall accompany the application. Applicants for a license to operate an adult entertainment business as defined in subsections (B)(1) and (2) of Section 5.08.020 shall also pay a fee of two thousand four hundred sixty-five dollars ($2,465.00), prorated on an annual basis, for subsequent monitoring and regulation. Adult entertainment businesses as defined in subsection (B)(3) of Section 5.08.020 shall pay a subsequent monitoring and regulation fee of six hundred sixteen dollars ($616.00), prorated on an annual basis. Any license issued hereunder shall expire on December 31st of each year and shall be renewable on or before that date on payment of an eighty-four dollar ($84.00) renewal processing fee. Businesses defined in subsections (B)(1) and (2) of Section 5.08.020 shall pay the two thousand four hundred sixty-five dollar ($2,465.00) regulation and monitoring fee each year. Businesses defined in subsection (B)(3) of Section 5.08.020 shall pay the monitoring and regulation fee of six hundred sixteen dollars ($616.00) each year. A license shall not be renewed during any period of suspension or while an appeal regarding a suspension or revocation is pending under this chapter.

C. The sheriff or his designee shall forward a copy of the application to the planning department forthwith after it is filed.

D. The sheriff or his designee shall issue a permit within twenty (20) business days of receipt of the application and payment of the appropriate fees if he finds that:

1. The application is complete and truthful;

2. The business for which the application is made, and the building in which such business is to be conducted, conform to this chapter and other applicable laws and regulations, including the county zoning ordinance;

3. The applicant is eighteen (18) years of age or older; and

4. The applicant has not had a license issued under this chapter revoked within the twelve (12) months immediately preceding the date of the application.

E. If the sheriff or his designee determines that the applicant has failed to meet any of the criteria of subsection (D) of this section, the applicant shall be notified of the decision to deny the permit. Notice of such decision specifying the grounds therefor shall be sent in writing to the applicant at the mailing address set forth in the application, and placed in the U.S. mail not later than the twentieth business day after the application was filed. Failure to so notify the applicant within the allotted time or failure to make the findings set forth in subsection (D) of this section within the allotted time shall be deemed a grant of the permit. After notice duly given, the applicant may correct or remedy minor problems under subsections (D)(1) and (2) of this section and the license shall issue forthwith.

F. The applicant may appeal denial of the license to the board of supervisors by filing written notice thereof specifying each ground therefor with the clerk of the board of supervisors within seven (7) days of the date the notice of denial was mailed. The matter shall be heard and determined at a regular meeting of said board within twenty-one (21) days of the date the appeal was filed. The decision of the board of supervisors shall be final.

(Ord. G-6239 § 3 (part), 1995)

A. No adult entertainment business shall be open nor shall any activity described in subsection (B) of Section 5.08.020 be conducted or carried on the business premises between the hours of two (2:00) a.m. and six (6:00) a.m. of any day.

B. No licensee shall cause, allow, permit, suffer or tolerate any doors on the licensed premises to be locked or barred during business hours.

C. No license shall be transferable to another person.

D. A license shall be valid only for the location for which and to the person to which it was issued.

E. No adult entertainment business shall be located in proximity to any residential zone, school, public park or church, or within one thousand (1,000) feet of another adult entertainment business measured, in a straight line without regard to intervening structures, from the nearest point of the building in which the proposed adult business is to be established to the nearest point on the property line of the parcel occupied by any existing adult entertainment business. No license for an adult entertainment business issued by reason of the failure of the sheriff to meet the time limits or make the findings required by subsections (D) and (E) of Section 5.08.030 that is in violation of this subsection shall be renewed.

F. No licensee shall allow, permit, suffer or tolerate any person under the age of eighteen (18) years to enter, be in or remain in any adult entertainment business.

G. No licensee shall sell or otherwise transfer alcoholic beverages or illegal drugs on the premises nor allow, permit, suffer or tolerate their consumption or possession on the premises of any adult entertainment business by any person.

H. Any individual viewing booths for public use in adult entertainment businesses defined in subsection (B)(1) of Section 5.08.020 may be enclosed on three (3) sides only and the open side shall be one hundred percent (100%) open and the visibility of the inside of the booth shall not be otherwise obstructed. The open side of all individual viewing booths in any adult entertainment business shall face a central isle and be visible from inside the front or main entrance to the business. No licensee shall cause, permit or suffer to exist any opening between booths. Licensee shall inspect the booths daily for openings. Not more than one (1) person shall occupy any individual booth at one time.

I. Any individual viewing booths for public use in adult entertainment businesses defined in subsection (B)(2) of Section 5.08.020 may be enclosed on three (3) sides only and the open side shall be one hundred percent (100%) open and the visibility of the inside of the booth shall not be otherwise obstructed. The open side of all individual viewing booths in any adult entertainment business shall face a central isle and be visible from inside the front or main entrance to the business. There shall be a barrier of plexiglass or similar substance between the entertainer and the patron which shall have no single opening larger than one-half (½) inch in diameter. No licensee shall cause, permit or suffer to exist any opening between booths. Licensee shall inspect the booths daily for compliance with this subsection. Not more than one (1) person shall occupy any individual booth at one time.

J. Except as provided in subsection (I) of this section, no entertainer shall cause him or her self to come within six (6) feet of any member of the public when any of the conditions in subsections (B)(2)(6)(i) through (iv) of Section 5.08.020 exists. No licensee shall cause, allow, permit, suffer or tolerate the conduct prohibited in this subsection on the licensed premises.

K. No licensee or entertainer shall, whether clothed, or partially or totally nude, cause any part of his or her body, directly or through a medium, to touch, massage, rub, stroke, caress or fondle the genital or pubic area of any member of the public or allow, suffer, permit or tolerate himself or herself to be caressed or fondled by any member of the public. No licensee shall cause, allow, suffer or tolerate the conduct prohibited in this subsection on the licensed premises.

L. No licensee or entertainer shall manage the business premises of or work on the premises of any adult entertainment business as defined in subsection (B)(1) or (2) of Section 5.08.020 who is required to register under Section 290 of the Penal Code or who has been convicted of violating, for any sexually oriented conduct or solicitation thereof, any of the following Penal Code sections within the preceding twelve (12) months of applying for work at the premises or who is on probation or parole for any such conviction: 314, 315, 316, 318 (prostitution only), 266a, 266e, 266f, 266h, 266i, or subdivisions (a), (b) or (d) of section 647. The applicant or his designee shall file with the sheriff's department vice division the current name, address, telephone number, driver's license number, date of birth and social security number of any licensee or entertainer who will be working at the adult entertainment business not later than two (2) full business days before the day any such person starts work.

M. No licensee or entertainer shall cause, allow, participate in, permit, suffer, tolerate, encourage or solicit any sex act, contact stimulation of the genitalia by or between any person or persons on the adult entertainment business premises.

N. No adult entertainment business shall be operated in any manner that permits the observation of any activity or person or any material of any nature whatsoever that depicts or describes in any manner explicit sexual material located inside the business from any public way or from any location outside the business or area of such business accessible to the public. This provision shall apply to and include any window, display, decoration, sign, show window or other opening visible to the public.

(Ord. G-6239 § 3 (part), 1995)

Each licensee shall post and continuously keep posted a copy of this chapter and the license issued hereunder in a conspicuous place inside the licensed premises.

(Ord. G-6239 § 3 (part), 1995)

A. The applicant is responsible for the adult entertainment business at all times being in compliance with this chapter. He shall be responsible for the conduct of all managers, employees and entertainers while they or any of them are on the licensed premises and any act or omission of any such person constituting a violation of the provisions of this chapter shall be deemed the act or omission of the applicant for purposes of determining whether the license shall be revoked, suspended or renewed.

B. Any violation of the physical or structural requirements in subsection (H), (I) or (N) of Section 5.08.040 shall be corrected within seventy-two (72) hours after written notice of the violation is given the manager of the business during regular business hours. Notice of the violation shall be mailed to the applicant by overnight mail or delivered by personal service. Failure to correct the violation will result in suspension of the license until the violation is corrected. Subsequent intentional or reckless violations of the same provision violated shall result in a ten (10) day suspension of the license. The third violation of the same provision in any twelve (12) month period shall be conclusively presumed to have been intentional or reckless.

C. Violation of any provision in subsections (A), (B), (F), (G), (J) or the notice provision in subsection (L) of Section 5.08.040 shall result in a five (5) day suspension of the license. A second violation within a period of six (6) months shall result in a ten (10) day suspension. Three (3) violations within any twelve (12) month period shall cause the license to be revoked.

D. Violation of any provision of subsection (K) or (M) or the work restriction in subsection (L) of Section 5.08.040 shall result in a thirty (30) day suspension. A second violation of any of these provisions within any twelve (12) month period shall result in revocation of the license.

E. Operation of the business during suspension of the license shall cause the license to be revoked. The applicant may elect to pay a fine in the amount of two hundred fifty dollars ($250.00) in lieu of each day of suspension ordered.

F. Suspension or revocation pursuant to this section shall become effective at the beginning of the eleventh business day following the date that written notice of the violation and the proposed action is served on the manager at the business premises and a copy of the written notice is personally served on the applicant or mailed to the applicant by overnight mail; provided, however, if an appeal is filed with the board of supervisors at any time before five (5:00) p.m. on the tenth business day, the suspension or revocation shall not become effective, if at all, until the date specified by said board. The notice shall contain a statement of the right to appeal under this section. The appeal shall be in writing and shall specify all grounds and reasons in support of the appeal. The board shall hear the appeal within thirty (30) days of filing. Appellant and the sheriff or his designee may present any evidence relevant to a determination of the appeal. The board shall issue its decision by resolution containing its findings within thirty (30) days. The resolution shall state whether the proposed action is to be taken and if so, when. The board may reduce the proposed penalty or in-lieu fine in its discretion. The board's decision shall be final.

(Ord. G-6239 § 3 (part), 1995)

Any adult entertainment business located or operated contrary to the provisions of this chapter or state, federal or other local law is declared to be unlawful and a public nuisance, and the district attorney may, in addition to or in lieu of prosecuting a criminal action under this chapter, commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof in the manner provided by law, and shall take such other steps and shall apply to such other court or courts as may have jurisdiction to grant such relief as will abate or remove the adult entertainment business and restrain and enjoin any person from operating, conducting or maintaining an adult entertainment business contrary to the provisions of this chapter or such other laws.

(Ord. G-6239 § 3 (part), 1995)

Any adult entertainment business legally operating on or before the effective date of the ordinance codified in this chapter, which is not in compliance with subsection (E) of Section 5.08.040, may continue to operate at the same location and to the same extent, degree and manner as it was on the effective date hereof but shall, in all other respects, be subject to and shall meet the requirements of this chapter. The same shall be true of any adult entertainment business which comes into existence after said ordinance becomes effective around which a zone change takes place or other protected use is established if such change or new protected use is not caused by or the fault of the adult entertainment business or the licensee.

(Ord. G-6239 § 3 (part), 1995)

A. A violation of any provision of this chapter is a misdemeanor, punishable by a five hundred dollar ($500.00) fine and/or imprisonment in the county jail for a term not exceeding six (6) months. Each and every twenty-four (24) hour day, or fraction thereof, of a continuing violation of any provision of this chapter will constitute a separate misdemeanor offense, separately punishable by fine and/or imprisonment as aforesaid.

B. The remedies provided in this chapter shall be construed to be separate and distinct and the pursuit, imposition and enforcement of one shall not prevent or foreclose the pursuit, imposition and enforcement of any other or others.

(Ord. G-6239 § 3 (part), 1995)