Chapter 85.21 — ADULT BUSINESS REGULATORY PERMIT

It is the purpose of this Chapter to provide a process for the County Land Use Services Department to review all applications submitted to the County for an Adult Business Regulatory Permit that are in compliance with Division 2 (Land Use Zoning Districts and Allowable Land Uses) and the other applicable requirements of this Development Code. This process will ensure that all adult businesses are in compliance with all applicable regulations and will promote the health, safety, and general welfare of the citizens of the County, and prevent the deleterious secondary effects of adult businesses within the County. The provisions of this Chapter have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including adult-oriented materials. Similarly, it is neither the intent nor effect of this Chapter to restrict or deny access by adults to adult-oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult-oriented entertainment to their intended market. (Ord. 4239, passed - -2014)

(a) All adult businesses are subject to the Adult Business Regulatory Permit requirements of Chapter 84.02, this Chapter as well as all other applicable ordinances of the County and laws of the State of California. It shall be unlawful for any person to establish, operate, engage in, conduct, or carry on any adult business within San Bernardino County unless the person first obtains, and continues to maintain in full force and effect, an Adult Business Regulatory Permit as herein required. Any occurrence of the “establishment” of an adult business as defined in Chapter 810.01 of this Title, shall require a new application for an Adult Business Regulatory Permit. The Adult Business Regulatory Permit shall be subject to the development and operational standards of Chapter 84.02 of this Title and the requirements of the zoning or other land use provisions applicable to where the facility is located. (b) The Planning Commission shall grant, deny and/or renew an Adult Business Regulatory Permit in accordance with these regulations.

(c) Permit applicants shall file a written, signed and verified application at the office of the County Land Use Services Department on a form provided by the Department. Such application shall contain the following information and be accompanied by the following documents:

(1) If the permit applicant is an individual, the individual shall state his or her legal name, including any aliases, and address, and shall submit satisfactory written proof that he or she is at least 18 years of age.

(2) If the permit applicant is a partnership, the partners shall state the partnership’s complete name, address, the names of all partners, and whether the partnership is general or limited; and shall attach a copy of the partnership agreement, if any.

(3) If the permit applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of the State of California, the names and capacities of all officers and Directors, the name of the registered corporate agent, and the address of the registered office for service of process.

(4) A signed and verified statement that the permit applicant has not pled guilty or nolo contendere to nor has the permit applicant been convicted of an offense classified by this or any other state as a sex or sex-related offense, including crimes involving moral turpitude, prostitution, or obscenity, subject to the following time periods:

(A) If a misdemeanor, more than two years have elapsed from the date of the plea or conviction or from the date of release from confinement for the conviction, whichever is the later date, to the date of the application; or

(B) If a felony, more than five years have elapsed from the date of the plea or conviction or from the date of release from confinement for the conviction, whichever is the later date, to the date of the application; or

(C) If two or more misdemeanors, the pleas or convictions occurred within any 24-month period and more than five years have elapsed from the date of the last plea or conviction or from the most recent date of release from confinement for the conviction or plea, whichever is the later date, to the date of application.

If the applicant is a partnership or corporation, such verified statement must be submitted by each and every partner, officer and/or director.

(5) The permit applicant shall provide a list of all performers and non-performers, which includes the performer’s/non-performer’s legal name, and mailing address, and satisfactory written proof that each performer/non-performer is at least 18 years of age. If the Adult Business Regulatory Permit is granted, the owner/ operator shall maintain this list with current and updated information and shall make this list available for inspection upon reasonable notice.

(6) Each performer and non-performer working for a permit applicant shall provide the permit applicant with a signed and verified statement that the performer or non-performer has not pled guilty or pled nolo contendere or been convicted of an offense classified by this or any other state as a sex or sex-related offense, including crimes involving moral turpitude, prostitution, or obscenity, within the time periods established in Subdivisions 85.21.020(c)(4)(A), (B), and (C).

(7) If the permit applicant intends to operate the adult business under a name other than that of the permit applicant, the permit applicant shall file the fictitious name of the adult business and show proof of registration of the fictitious name.

(8) A description of the type of adult business for which the permit is requested and the proposed address where the adult business will operate, plus the names and addresses of the owners and lessors of the adult business site.

(9) The address to which notice of action on the application is to be mailed if different from the applicant’s address.

(10) A diagram showing the interior premises including a statement of the total floor area occupied by the adult business. The diagram may not be hand drawn. It must show orientation to the north or some other designated street or object. It must be generated by a defined scale and show marked dimensions of the premise to an accuracy of plus or minus six inches.

(11) A diagram of the off-street parking areas and entries to the premises of the adult business, also showing the location of the lighting system required by this Chapter.

(d) The completed application shall be accompanied by a non-refundable application fee. The amount of such fees shall be set by ordinance adopted by the Board of Supervisors.

(e) The completeness of an application for an Adult Business Regulatory Permit shall be determined by the Land Use Services Department Director (“the Director”) within five business days of its submittal. If the Director determines that the permit application is incomplete, the Director shall immediately notify in writing the permit applicant of such fact and the reasons therefor, including identifying any additional information necessary to render the application complete. Such writing shall be deposited in the U.S. mail, postage prepaid, immediately upon determination that the application is incomplete. Within five business days following the receipt of an amended application or supplemental information, the Director shall again determine whether the application is complete in accordance with the provisions set forth above. Evaluation and notification shall occur as provided herein until such time as the application is found to be complete.

(f) The fact that a permit applicant possesses other types of state or city licenses or permits does not exempt the permit applicant from the requirement of obtaining an Adult Business Regulatory Permit under this Chapter.

(Ord. 4239, passed - -2014)

§ 85.21.030 Issuance of Permit /Procedures.

(a) Upon the filing of a completed application for an Adult Business Regulatory Permit, the Director shall immediately write or stamp the application “Received” and, in conjunction with County staff, shall promptly investigate the information contained in the application to determine whether an Adult Business Regulatory Permit shall be granted. Investigation shall not be grounds for the County to unilaterally delay in reviewing a completed application, nor is it grounds to extend the time period to conduct a hearing pursuant to this Section.

(b) Within 21 days after the filing of a completed Adult Business Regulatory Permit application, the investigation shall be completed. The Director shall promptly notice a public hearing before the Planning Commission with notice of such hearing to be made pursuant to Government Code §§ 65091 and 65905. Said public hearing shall be conducted within 30 days of the expiration of the completed investigation period.

(c) In reaching a decision on the application, the Planning Commission shall not be bound by the formal rules of evidence in the Evidence Code.

(d) A written decision on the application for an Adult Business Regulatory Permit shall be issued by the Planning Commission within four business days after the public hearing required by this Section. The failure of the Planning Commission to render any decision within the time frames established in any part of this Section shall be deemed to constitute an approval subject to the compliance with all operating standards of Chapter 84.02. The decision of the Planning Commission shall be hand delivered or mailed to the applicant at the address provided in the application, and shall be provided in accordance with the requirements of this Code.

r any decision within the time frames established in any part of this Section shall be deemed to constitute an approval subject to the compliance with all operating standards of Chapter 84.02. The decision of the Planning Commission shall be hand delivered or mailed to the applicant at the address provided in the application, and shall be provided in accordance with the requirements of this Code.

(e) Notwithstanding any provisions in this Section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this Section or may request a continuance regarding any decision or consideration by the County of the pending application. Extensions of time sought by applicants shall not be considered delay on the part of the County or constitute failure by the County to provide for prompt decisions on applications. (f) The Planning Commission shall grant or deny the application in accordance with the provisions of this Section, and so notify the applicant as follows:

(1) The Director shall write or stamp “Granted” or “Denied” on the application and date and sign such notation.

(2) If the application is denied, the Director shall attach to the application a statement of the reasons for the denial.

(3) If the application is granted, the Director shall attach to the application an Adult Business Regulatory Permit.

(g) The Planning Commission shall grant the application and issue the Adult Business Regulatory Permit upon findings that the proposed business meets, or will meet, all of the development, operational and environmental performance standards of the San Bernardino County Code, unless the application is denied based upon the noncompliance with one or more of the criteria set forth in this Chapter.

(h) If the Planning Commission grants the application, the applicant may begin operating the adult business for which the permit was sought, subject to compliance with the development and operating standards of Chapter 84.02; compliance with the environmental performance standards and requirements of this Chapter. The permitee shall post the permit conspicuously in the premises of the adult business.

(i) Findings. The Planning Commission shall deny the application if the applicant fails to establish any of the following:

(1) The adult business complies with the County’s zoning requirements as to its underlying zoning designation and other locational requirements.

(2) The adult business complies with the development, operating or environmental performance standards found in Chapter 84.02 of this Title.

• (3) The permit applicant is at least 18 years of age.

• (4) The required application fees have been paid.

• (5) The application complies with § 85.21.020(c).

(j) A permittee, applicant or substantially related entity wherein the new application is made by an individual or previous entity exercising management or oversight or control of the adult business, cannot re-apply for an Adult Business Regulatory Permit for a particular location within one year from the date of prior denial.

(k) Any affected person may appeal the decision of the Planning Commission in writing within ten days in accordance with the provisions of Chapter 86.08 of this Title. (Ord. 4239, passed - -2014)

§ 85.21.040 Inspection.

Each owner, operator, manager, employee or independent contractor of an adult business or other person in charge of an adult business shall permit representatives of the County Sheriff, Department of Public Health, Fire Department, Land Use Services Department, business license division and other County departments, to inspect the adult business for the purpose of ensuring compliance with the laws and operating standards applicable to adult businesses at any time it is occupied or open for business. Such inspections shall be conducted in a reasonable manner. (Ord. 4239, passed - -2014)

(a) On determining that grounds for permit suspension or revocation exist, the Director shall furnish written notice of the proposed suspension or revocation to the permittee. Such notice shall set forth the time and place of a hearing and the ground or grounds upon which the hearing is based, the pertinent Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the permittee, or shall be delivered to the permittee personally, at least ten days prior to the hearing date. Hearings pursuant to this Section shall be noticed in accordance with Government Code §§ 65091 and 65905 and conducted by the Planning Commission. Hearings pursuant to this Section shall be conducted in accordance with procedures established by the Planning Commission but, at a minimum, shall include the following: (1) All parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel.

(2) The Planning Commission shall not be bound by the formal rules of evidence.

(3) Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness at the request of the permittee. Extensions of time or continuances sought by a permittee shall not be considered delay on the part of the County or constitute failure by the County to provide for prompt decisions on permit suspensions or revocations.

(4) The Planning Commission’s decision may be appealed in accordance with Chapter 86.08 of this Title.

(b) A permit may be suspended or revoked based on the following causes arising from the acts or omissions of the permittee, or an employee, independent contractor, partner, operator or manager of the permittee:

(1) The building, structure, equipment, or location used by the adult business fails to comply with all provisions of these regulations and this Section relating to adult businesses, including the adult business operating standards contained in Chapter 84.02 and the zoning requirements of Chapter 82.05 of this Title, and all other applicable building, fire, electrical, plumbing, health, environmental performance standards and zoning requirements of the San Bernardino Code.

(2) The permittee has failed to obtain or maintain all required County licenses or permits with respect to the business or the premises.

(3) The permittee has made any false, misleading, or fraudulent statement of material fact in the application for an Adult Business Regulatory Permit.

(4) The permit is being used to conduct an activity different from that for which it was issued.

(5) That an individual employed by, or performing in, the adult business (whether classified as an employee or independent contractor) has been convicted of two or more sex-related offenses that occurred in or on the permitted premises within a 12-month period and was employed by, or performing in, the adult business at the time the offenses were committed.

(6) That the use for which the approval was granted has ceased to exist, has been suspended or has not been active for six months or more.

(7) That the transferee/new owner of an adult business or Adult Business Regulatory Permit failed to comply with the requirements of this Chapter.

(8) The permittee, partner, director, operator, or manager has knowingly allowed or permitted, or has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the adult business; or a permittee has been convicted of violating any of the following state laws on the premises of the adult business:

(A) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation.

(B) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur.

(C) Any conduct constituting a criminal offense which requires registration under Penal Code § 290. (D) The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Penal Code §§ 315, 316, 318 or subdivision (b) of § 647b.

(E) Any act constituting a violation of provisions in the Penal Code relating to obscene matter or distribution of harmful matter to minors including, but not limited to §§ 311 through 313.4.

(F) Any act constituting a felony involving the sale, use, possession, or possession for sale of any controlled substance specified in Health and Safety Code §§ 11054, 11055, 11056, 11057, or 11058.

(G) An act or omission in violation of any of the requirements of this Chapter if such act or omission is with the knowledge, authorization, or approval of the permit holder or is as a result of the permit holder’s negligent supervision of the employees or independent contractors of the adult facility. This includes the allowance of activities that are or become a public nuisance which includes the disruptive conduct of business patrons whether on or immediately off the premises where such patrons disturb the peace, obstruct traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property.

(c) After holding the hearing in accordance with the provisions of this Section, if the Planning Commission finds and determines that there are grounds for suspension or revocation, the Planning Commission shall impose one of the following:

(1) Suspension of the permit for a specified period not to exceed six months; or

(2) Revocation of the permit.

The written decision shall be hand delivered or overnight mailed to the permittee within five days of the public hearing.

(d) In the event a permit is revoked pursuant to this Section, another Adult Business Regulatory Permit to operate an adult business shall not be granted to the permittee or an entity related to the permittee within 12 months after the date of such revocation. (Ord. 4239, passed - -2014)

(a) After approval, denial, suspension or revocation of a permit, any affected person may appeal the decision to the Board of Supervisors in writing within ten days after the written decision. (b) Consideration of an appeal of the decision shall be conducted pursuant to Chapter 86.08 of this Title, and which hearing shall occur within 45 days of the filing or initiation of the appeal.

(c) Upon the conclusion of the de novo public hearing, the Board of Supervisors shall grant or deny the appeal. The Board of Supervisors’ decision shall be final and conclusive and shall be rendered in writing within four County business days of the hearing, such written decision to be mailed to the party appealing the decision.

(d) In reaching its decision, the Board of Supervisors shall not be bound by the formal rules of evidence.

(e) Notwithstanding any provisions in this Section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this Section or may request a continuance regarding any decision or consideration by the County of the pending appeal. Extensions of time sought by applicants shall not be considered delay on the part of the County or constitute failure by the County to provide for prompt decisions on applications.

(f) Failure of the Board of Supervisors to render a decision to grant or deny an appeal of a permit denial within the time frames established by this Section shall be deemed to constitute an approval of the Adult Business Regulatory Permit.

(g) The time for a court challenge to a decision of the hearing officer is governed by Code of Civil Procedure § 1094.8.

(h) Notice of the Board of Supervisors’ decision and its findings shall include citation to Code of Civil Procedure § 1094.8.

(i) Any applicant or permittee whose permit has been denied pursuant to this Section shall be afforded prompt judicial review of that decision as provided by Code of Civil Procedure § 1094.8. (Ord. 4239, passed - -2014)

§ 85.21.070 Transfer of Adult Business Regulatory Permit.

(a) A permit holder shall not operate an adult business under the authority of an Adult Business Regulatory Permit at any place other than the address of the adult business stated in the application for the permit.

(b) In the event of a transfer of ownership of the adult business, the new owner shall be fully informed of the requirements of this Chapter and of Chapter 84.02, including the operational and development standards herein.

(c) In the event of a transfer of the adult business or the adult business permit, the transferee must provide the Director with the following information within seven days of the transfer:

(1) If the transferee is an individual, the individual shall state his or her legal name, including any aliases, and address, and shall submit satisfactory written proof that he or she is at least 18 years of age. (2) If the transferee is a partnership, the partners shall state the partnership’s complete name, address, the names of all partners, and whether the partnership is general or limited; and shall attach a copy of the partnership agreement, if any.

(3) If the transferee is a corporation or L.L.C., the entity shall provide its complete name, the date of its incorporation or organization, evidence that it is in good standing under the laws of the State of California, the names and capacities of all officers and directors, managers or members having supervisory or managerial control over the facility, the name of the registered agent, and the address of the registered office for service of process.

(Ord. 4239, passed - -2014)

(a) Any owner, operator, manager or employee of an adult business violating or permitting, counseling, or assisting the violation of any of the provisions regulating adult businesses shall be subject to any and all civil remedies, including permit revocation. All remedies provided herein shall be cumulative and not exclusive. Any violation of these provisions shall constitute a separate violation for each and every day during which such violation is committed or continued.

(b) In addition to the remedies set forth in Subdivision (a) of this Section, any adult business that is operating in violation of the provisions regulating adult businesses is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation.

(c) The restrictions imposed pursuant to this Section constitute a licensing or permitting process, and do not constitute a criminal offense. Notwithstanding any other provision of the San Bernardino County Code, the County does not impose a criminal penalty for violations of the provisions of this Chapter related to sexual conduct or activities.

(Ord. 4239, passed - -2014)

(a) Permitting Requirements . Any adult business operating in the County prior to the effective date of this Chapter must apply for a permit under this Chapter unless one has been previously approved. (B) Interior Configuration Requirements . Any legal pre-existing adult business that is required to, but does not, have interior configurations or stages that meet at least the minimum requirements of Chapter 84.02 shall have 90 days from the effective date of this Chapter to conform its premises to said requirements.

(c) Other Requirements . Except as provided for in Subdivisions (a) and (b) of this Section, an adult business shall comply with this Chapter and Chapter 84.02 on the date that it takes effect. (Ord. 4239, passed - -2014)

The provisions of this Chapter and Chapter 84.02 regulating adult businesses are not intended to be exclusive, and compliance therewith shall not excuse non-compliance with any other provisions of the County Code and/or any other regulations pertaining to the operation of businesses as adopted by the County.

(Ord. 4239, passed - -2014)