301.17: SEXUALLY ORIENTED — Porterville Municipal Code

A. Purpose and Intent:

1. It is the purpose and intent of this section to regulate sexually oriented businesses to promote the health, safety, morals, and

general welfare of the citizens of the city and to establish reasonable and uniform regulations to prevent any deleterious location and concentration of sexually oriented businesses within the city, thereby reducing or eliminating the adverse secondary effects from such sexually oriented businesses. The provisions of this section 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 section 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 section to condone or legitimatize the distribution of obscene material.

One of the important purposes of the regulations set forth in this section is to discourage and to minimize the opportunity for

criminal conduct. As such, nothing in this section shall permit or be interpreted to permit any use, conduct, and/or activity which is specifically prohibited under the following California Penal Code sections:

a. Receipt of money for placement of person for purposes of cohabitation (Penal Code section 266d);

b. Purchase of person for purposes of prostitution or placement of person for immoral purposes (Penal Code section 266e);

c. Sale of person for immoral purposes (Penal Code section 266f);

d. Pimping (Penal Code section 266h);

e. Pandering (Penal Code section 266i);

f. Lewd or obscene conduct (Penal Code section 314);

g. Houses of ill fame (Penal Code section 315);

h. Disorderly houses which disturb the immediate neighborhood (Penal Code section 316);

i. Places of prostitution (Penal Code section 317); and

j. Place of prostitution; place of lewdness; place used as bathhouse permitting conduct capable of transmitting AIDS (Penal Code

section 11225).

Nothing in this section shall permit, or be interpreted to permit any use, conduct, and/or activity which violates any federal, state

or local law of regulation.

B. Definitions. For the purposes of this section, certain terms and words are defined as follows:

A person who works or performs in and/or for a sexually oriented EMPLOYEE: business, regardless of whether or not said person is paid a salary, wage or other compensation by the operation of said business. Includes any of the following: a. The opening or commencement of any such business as a new business; b. The conversion of an existing business, whether or not a sexually oriented business, to any of the “sexually oriented businesses” defined ESTABLISHMENT: in this section; c. The addition of any of the “sexually oriented businesses” defined in this section to any other existing sexually oriented business; d. The relocation of any such sexually oriented business; or e. The substantial enlargement of any such sexually oriented business. a. The appearance or display of human bare buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast; or b. A state of dress which fails to opaquely and fully cover a human NUDITY: buttock, anus, male or female genitals, pubic region or areola or nipple of the female breast. Includes the owner, permit holder, custodian, manager, operator or OPERATOR: person in charge of any permitted or licensed premises. PERMITTED OR Any premises that requires a license and/or permit that is classified as a UNLICENSED PREMISES: sexually oriented business. A person in whose name a permit and/or license to operate a sexually PERMITTEE AND/OR oriented business has been issued, as well as the individual listed as an LICENSEE: applicant on the application for a permit and/or license. An individual, proprietorship, partnership, corporation, association or PERSON: other legal entity. Any building owned, leased or held by the United States, the state, the county, the city, any special district, school district, or any other agency PUBLIC BUILDING or political subdivision of the state or the United States, which building is REGULARLY FREQUENTED used as a library, community center, children’s center, or any other use BY CHILDREN: having special attraction to children, or which building is often visited by children for social activities unaccompanied by their parents or other adult custodian. Public land which has been designated for park or recreational activities including, but not limited to, a park, playground, nature trails, swimming PUBLIC PARK OR pool, reservoir, athletic field, basketball or tennis courts, open space RECREATION AREA: wilderness areas, or similar public land within the city which is under the control, operation, or management of the city park and recreation authorities. Any church, synagogue, mosque, temple or building which is primarily RELIGIOUS INSTITUTION: used for religious worship and related religious activities, as identified on the latest equalized tax roll. Any public or private educational facility including, but not limited to, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, SCHOOL: continuation schools, special education schools, junior colleges, and universities. School includes the school grounds, but does not include the facilities used primarily for another purpose and only incidentally as a school.

A state of dress in which clothing covers no more than the genitals,

SEMINUDE: pubic region and areolae of the female breasts, as well as portions of the body covered by supporting straps or devices. Any cemetery; religious institution; school; public building regularly SENSITIVE USE: frequented by children; public park; or boys’ club, girls’ club, or similar youth organization. Those businesses defined as follows: a. Adult Arcade: An establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image producing machines, for viewing by five or fewer persons each, are regularly available or used to show films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

b. Adult Bookstore, Adult Novelty Store Or Adult Video Store: A commercial establishment which: 1) has as a significant or substantial portion of its stock in trade; or 2) derives a significant or substantial portion of its revenues; or 3) devotes a significant or substantial portion of its interior floor or display space; or 4) devotes a significant or substantial portion of its business activities or employees’ time, or advertising, to the sale, rental or viewing for any form of consideration, of any one or more of the following: (1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, videocassettes, slides, or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; (2) Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities; (3) An establishment may have other significant or substantial business purposes that do not involve the offering for sale, rental or viewing of materials, depicting or describing specified sexual activities or specified anatomical areas, and still be categorized as adult bookstore, adult novelty store, or adult video store. Such other business purposes will not serve to exempt such establishments from being categorized as an adult bookstore, adult novelty store or adult video store so long as one of its significant or substantial business purposes is offering for sale or rental, for some form of consideration, the specified materials which depict or describe specified anatomical areas or specified sexual activities. c. Adult Cabaret: A nightclub, bar, restaurant, “bottle club”, or similar commercial establishment, which regularly features: 1) live performances which are characterized by the exposure of specified anatomical areas, or by specified sexual activities; or 2) films, motion pictures, videocassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. d. Adult Model Studio: Any place where a person who displays specified anatomical areas or who engages in specified sexual activities is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. This term does not include a modeling class operated by a proprietary school, licensed by the state of California; a college, junior college, or university supported entirely or partly by taxation; by a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or in SEXUALLY ORIENTED a structure which has no sign visible from the exterior of the structure BUSINESSES (ADULT and no other advertising that indicates a nude person is available for ORIENTED BUSINESSES): viewing, where in order to participate in a class a student must enroll at least three (3) days in advance of the class, and where no more than one nude model is on the premises at any one time. e. Adult Motel: A motel, hotel or similar commercial establishment which: 1) offers public accommodations, for any form of consideration, and which regularly provides or makes available to patrons with closed circuit television transmissions, films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and which advertises the availability of this sexually oriented type of material by means of a sign visible from the public right of way, or by means of any off premises advertising including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television; or 2) offers a sleeping room for rent for a period of time less than ten (10) hours; or 3) allows a tenant or occupant to rent or

of way, or by means of any off premises advertising including, but not
limited to, newspapers, magazines, pamphlets or leaflets, radio or
television; or 2) offers a sleeping room for rent for a period of time less
than ten (10) hours; or 3) allows a tenant or occupant to rent or subrent
the sleeping room for a time period of less than ten (10) hours.

f. Adult Motion Picture Theater: A commercial establishment where
films, motion pictures, videocassettes, slides or similar photographic
reproductions depicting or describing specified sexual activities or
specified anatomical areas are regularly shown for any form of
consideration.
g. Adult Theater: A theater, concert hall, auditorium, or similar
commercial establishment which, for any form of consideration, regularly
features live performances which are characterized by exposure of
specified anatomical areas or by specified sexual activities.

h. Regularly Features Or Regularly Shown: With respect to an adult cabaret, adult theater, or adult motion picture theater means a regular and substantial course of conduct. The fact that a live performance or film which is distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities is exhibited on two (2) or more occasions within a thirty (30) day period; three (3) or more occasions within a sixty (60) day period; or four (4) or more occasions within a one hundred eighty (180) day period, shall to the extent permitted by law be deemed to be a regular and substantial course of conduct. i. Significant Or Substantial Portion: Such a percentage of its activities, space allocation, revenues, advertising targeting, stock in trade, floor or display space, business receipts, revenues, or other business undertakings as to indicate to a reasonable person that a sexually oriented portion of the business is one of its important activities, though not necessarily its only or even primary activity; for this purpose, evidence that twenty five percent (25%) or more of its revenue is derived from such sexually oriented activities or materials, or that twenty five percent (25%) or more of its interior floor space or display space is devoted to such sexually oriented activities or materials, or that twenty five percent (25%) or more of its actual stock in trade regularly displayed and immediately available for use, rental, purchase, viewing or perusal is comprised of such sexually oriented materials, all as defined in this subsection, shall be evidence that a “significant or substantial portion” of the business is devoted to such uses. As used in this section, means and includes any of the following: a. Less than completely and opaquely covered human genitals, pubic SPECIFIED ANATOMICAL region, buttocks, anus, or female breasts below a point immediately AREAS: above the top of the areolae; or b. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. As used in this section, means and includes any of the following: a. The fondling or other intentional touching of buttocks for purpose of sexual arousal, or fondling or other intentional touching of human genitals, pubic region, anus, or female breasts; b. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; ACTIVITIES: c. Masturbation, actual or simulated; d. Human genitals in a state of sexual stimulation, arousal or tumescence; e. Excretory functions as part of or in connection with any of the activities set forth in subparagraphs a through d of this definition. SUBSTANTIAL ENLARGEMENT OF A An increase in the floor areas occupied by the business as the floor SEXUALLY ORIENTED areas existed on the effective date hereof. BUSINESS: TRANSFER OF OWNERSHIP Includes any of the following: OR CONTROL OF A a. The sale, lease or sublease of the business; SEXUALLY ORIENTED b. The transfer of securities which constitute a controlling interest in the BUSINESS: business, whether by sale, exchange or similar means.

C. Establishment And Classification Of Businesses Regulated: The establishment of any sexually oriented business shall be permitted only in those particular specified districts where such uses are permitted, and shall be subject to the following restrictions: No person shall cause or permit the establishment of any “sexually oriented businesses”, as defined in subsection (b) of this section, within six hundred (600) feet of another such business or within one thousand (1,000) feet of any sensitive use. These limitations apply to sexually oriented businesses classified as follows:

Adult arcade.
Adult bookstore, adult novelty store, or adult video store.
Adult cabaret.
Adult model studio.
Adult motel.
Adult motion picture theater.
Adult theater.

D. Measurement Of Distance: Distance between any two (2) sexually oriented businesses or between a sexually oriented business and a sensitive use shall be measured in a straight line, without regard to intervening structures, from property line to property line.

E. Location of Sexually Oriented Business: Sexually oriented businesses shall be allowed only in districts in which such uses are specifically permitted. Permits for sexually oriented businesses shall be required and governed by the procedures and policies specified

in the city of Porterville municipal code. In addition, any sexually oriented business shall be subject to the following restrictions:

The person commits a misdemeanor, if he operates or causes to be operated, a sexually oriented business outside of the

permitted districts.

The person commits a misdemeanor if he operates or causes to be operated a sexually oriented business within one thousand

(1,000) feet of any sensitive use.

A person commits a misdemeanor if he operates or causes to be operated a sexually oriented business within six hundred (600)

feet of another such business, which will include, any adult arcade, adult book store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, or adult modeling studio.

F. Nonconforming Uses:

Permitted To Continue: Any sexually oriented business operating on the effective date hereof that is in violation of subsections (c)

through (e) of this section shall be deemed a nonconforming use. Such nonconforming uses shall be governed by the provisions of this code. If two (2) or more sexually oriented businesses are within six hundred (600) feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is nonconforming.

G. Injunction: A person who operates or causes to be operated a sexually oriented business without having a valid permit due to location restrictions is subject to a suit for injunction as well as prosecution for the misdemeanor punishable by a fine of one thousand dollars ($1,000.00) and/or one hundred eighty (180) days’ imprisonment, or by both such fine and imprisonment. If an injunction is sought and granted, the sexually oriented business shall be obligated to pay the city attorney fees and costs of the city, at the discretion of the court.

H. Exception For Certain Nude Modeling: It is a defense to prosecution under this section if a person appearing in a state of nudity did so in a modeling class operated:

By a proprietary school, licensed by the state of California; a college, junior college, or university supported entirely or partly by

taxation; or

By a private college or university which maintains and operates educational programs in which credits are transferable to a

college, junior college, or university supported entirely or partly by taxation; or

In a structure:

a. Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for

viewing; and

b. Where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and

c. Where no more than one (1) nude model is on the premises at any one (1) time. (Ord. 1866, 11-19-2019)