San Bernardino County Municipal Code Ch. 29 Adult Business Non-Performer License

The definitions for this Chapter shall be governed by the definitions found in § 810.01.030(m) of the County Development Code unless otherwise stated.

(Ord. 4239, passed - -2020; Am. Ord. 4378, passed - -2020)

It is the purpose and intent of this Chapter to require certain background checks on non-performers who work in adult businesses during regular business hours to promote the health, safety, and general welfare of the County. The goals of these non-performer employee provisions are: (a) to protect minors by requiring that all non-performers regularly employed be over the age of 18 years; (b) to assure the correct identification of persons working in adult businesses; (c) to enable the County Sheriff to deploy law enforcement resources effectively; and (d) to detect and discourage the involvement of crime in adult businesses by precluding the employment of non-performers with certain sex-related convictions within a prior time period. It is neither the intent nor the effect of these regulations to invade the privacy of adult business employees or to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor the effect of these regulations to restrict or deny access by adults to communicative materials or to deny access by the distributors or exhibitors of adult businesses to their intended lawful market. Nothing in these regulations is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use which violates any County ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof.

(Ord. 4239, passed - -2014; Am. Ord. 4378, passed - -2020)

(a) No individual who works as a non-performer in a managerial position in an adult business shall be employed, hired, engaged, or otherwise retained in an adult business without first obtaining an adult business non-performer license. Non-managerial individuals who are not performers do not need a license.

(b) Individuals who wish to work as non-performer managers in an adult business shall file a written, signed, and verified application or renewal application for an adult business non-performer license on a form provided by the responsible department. Such application shall contain the following information:

(1) The applicant’s legal name and all used aliases.

(2) Date of birth.

(3) Driver’s license or identification number and state of issuance or other state identification which confirms the name of the applicant.

(4) The license applicant’s fingerprints on a Livescan form provided by the San Bernardino Sheriff’s Department. Any fees for fingerprints shall be paid by the applicant. Fingerprints shall be taken within six months of the date of application.

(5) Whether the non-performer employee applicant has pled guilty or pled nolo contendere or been convicted of an offense classified by this or any other state as a sex related offense including crimes involving moral turpitude, prostitution, or obscenity subject to the time periods established in § 85.21.020(c)(4)(A), (B), and (C). Any applicant who admits of a recent prior sex related offense as specified above shall be denied employment in an adult business during the applicable time period for disqualification called out herein.

(6) The name and address of the adult business where the applicant proposes to work as a non-performer in a managerial capacity.

(c) The information provided above in Subdivision (b) of this Section, which is personal, private, confidential or the disclosure of which could expose the applicant to the risk of harm, will not be disclosed under the California Public Records Act. Such information includes, but is not limited to, the applicant’s mailing address, date of birth, age, and driver’s license number. The Board of Supervisors in adopting the application system set forth herein has determined in accordance with Government Code § 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant’s privacy, confidentiality and/or security interests are protected. The above-mentioned information shall be redacted from any copy of a completed application form made available to any member of the public.

(d) The responsible department must be available during normal working hours Monday through Friday to accept adult business non-performer license applications. The responsible department shall determine if an application is complete within five business days after receipt of the results of the Livescan application. If the responsible department determines that the application is incomplete, the responsible department shall immediately inform the applicant of such fact and the reasons therefor, including identifying any additional information necessary to render the application complete. Upon receipt of a completed adult business non-performer license application in which the applicant denies any conviction of a misdemeanor or felony constituting a specified criminal activity as specified in § 41.2903(b)(5), the responsible department shall permit temporary employment of such applicant in an adult business that possesses a valid adult business regulatory permit.

(Ord. 4239, passed - -2014; Am. Ord. 4378, passed - -2020)

(a) Upon submission of a completed adult business non-performer license application by an individual who wishes to work in a managerial position in an adult business, the responsible department shall immediately stamp the application “received” and in conjunction with County staff, including members of the Sheriff’s Department, shall promptly investigate the information contained in the application to determine whether the provisions of § 41.2903 are satisfied.

(b) Investigation shall not be grounds for the County to unilaterally delay in reviewing a completed application. The responsible department’s determination of any violation of § 41.2903 or the existence of any of the grounds set forth in Subdivision (f) below shall be made within ten business days from the date the application is filed with the responsible department. In the event the responsible department is unable to complete the investigation within ten business days, responsible department shall promptly notify the applicant. In no case shall the investigation exceed 30 days.

(c) The responsible department shall render a written decision to grant or deny the non-performer license within the foregoing ten-day time period set forth in Subdivision (b) of this Section. Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing ten-day period, or 30-day period if extended pursuant to Subdivision (b) of this Section, at the address provided by the applicant in the application. Notice of such decision shall also be mailed first class postage prepaid or hand delivered to the owner or management of the adult business(es) identified on the applicant’s application.

(d) The responsible department shall grant the application for a non-performer license unless the application is denied based on one or more of the grounds set forth in Subdivision (e) of this Section.

(e) The responsible department shall deny the application of a non-performer for a license to work in a managerial capacity at an adult business, or suspend or revoke an existing license, based on any of the following grounds:

(1) The applicant/license holder has made a false, misleading, or fraudulent statement of material fact in the application for a non-performer license.

(2) The applicant is under 18 years of age.

(3) The adult business identified by the applicant is not authorized to operate as a business under the laws of the State or County and/or does not have a valid adult business regulatory permit.

(4) The non-performer work applicant has pled guilty, or pled nolo contendere or been convicted of an offense classified by this or any other state as a sex related offense including crimes involving moral turpitude, prostitution, or obscenity subject to the time periods established in § 85.21.020(c)(4)(A), (B), and (C).

(5) Failure to comply with the requirements of this Chapter.

(f) The responsible department shall notify the applicant as follows:

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

(2) If the application for a non-performer license is denied, the responsible department shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the applicant may appeal the denial to a designated hearing officer. The designated hearing officer shall conduct a hearing as described in § 41.2905.

(g) Failure of the responsible department to render a decision on the application within the time frames established by this Section shall be deemed to constitute an approval of the non-performer license.

(h) Each license holder must annually renew his or her license with the responsible department designee by a written application for a license renewal. If said application conforms to the previously approved application and there has been no change with respect to the applicant having been convicted of any crime classified by this or any other state as a sex related offense, the responsible department shall renew the applicant’s availability for work in an adult business during regular business hours for one year. The renewal application shall be made at least 30 days before the expiration date of the license. Applications for renewal shall be acted upon as provided herein for action upon an initial application for a non-performer license. The responsible department’s denial of a renewal application is subject to the provisions of § 41.2905.

(Ord. 4239, passed - -2014; Am. Ord. 4379, passed - -2020)

(a) On determining that grounds exist to deny an original or renewal application for a non-performer license, or suspend or revoke an existing license, the responsible department shall furnish written notice of the proposed action to the applicant.

(b) The decision of the responsible department to deny an application for a non-performer license or to suspend or revoke a non-performer license shall be appealable to an appointed hearing officer by filing a written request for a hearing with the responsible department within 15 days following the day of mailing of the responsible department’s decision. All such appeals shall be filed with the responsible department and shall be public records. The responsible department shall issue a notice which shall set forth the time and place of a hearing before an appointed hearing officer which is within 30 days from the date the appeal was filed and the ground or grounds upon which the hearing is based, the pertinent San Bernardino County 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 applicant/license holder or shall be delivered to the applicant/license holder personally, at least ten days prior to the hearing date.

(c) At the hearing the applicant/license holder shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The hearing officer shall not be bound by the formal rules of evidence. 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 applicant. Extensions of time or continuances sought by an applicant/license holder shall not be considered delay on the part of the County or constitute failure by the County to provide for prompt decisions on denial of a non-performer license.

(d) The application of a non-performer to work in an adult business may be denied, or such license may be suspended or revoked based on any of the following causes arising from the acts or omissions of the applicant/license holder:

(1) The applicant/license holder has made any false, misleading, or fraudulent statement of material fact in the application for work as a non-performer in an adult business during regular business hours.

(2) The applicant/license holder has pled guilty, pled nolo contendere or been convicted of an offense classified by this or any other state as a sex related offense including crimes involving moral turpitude, prostitution, or obscenity and subject to the time periods established in § 85.21.020(c)(4)(A), (B), and (C).

(3) Failure to comply with the operating standards of Chapter 84.02 or the requirements of this Chapter.

(e) After holding the hearing in accordance with the provisions of this Section, if the hearing officer finds and determines that there are grounds to deny an application, or revoke or suspend a non-performer license, the hearing officer shall take such action. The hearing officer shall render a written decision that shall be hand delivered or overnight mailed to the applicant/license holder and any adult business that the applicant/license holder has identified on his or her application within four working days of the hearing. The hearing officer’s failure to render such a decision within this time frame shall constitute approval of the application or reinstatement of the license.

(f) If an application is denied pursuant to this section, the applicant may reapply for managerial work with an adult business 12 months after the date of such denial.

(g) The decision of the hearing officer shall be final and no further administrative appeal is available.

(Ord. 4239, passed - -2014; Am. Ord. 4378, passed - -2020)

The responsible department shall provide each individual required to have a license pursuant to this Chapter with an identification card containing the name, address, photograph, and license number of such individual. Every individual required to have the license shall have such card available for inspection at all times during which he or she is on the premises of the adult business.

(Ord. 4239, passed - -2014; Am. Ord. 4378, passed - -2020)

No adult business non-performer license may be sold, transferred, or assigned by any license holder or by operation of law, to any other person, group, partnership, corporation, or any other entity. Any such sale, transfer, or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the adult business non-performer license, and the license thereafter shall be null and void.

(Ord. 4239, passed - -2014; Am. Ord. 4378, passed - -2020)

(a) Any license holder violating or causing the violation of any of these provisions regulating adult business non-performer licenses shall be subject to license revocation/suspension pursuant to § 41.2905 above, a fine of not more than $1,000.00 pursuant to Government Code §§ 25132 and 53069.4, and any and all other civil remedies. 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 § 41.2905, any violation of any of these provisions regulating Adult Business Non-Performer Licenses is hereby declared to constitute a public nuisance and may be abated or enjoined.

(c) The restrictions imposed pursuant to this Section are part of a regulatory licensing process.

(Ord. 4239, passed - -2014; Am. Ord. 4378, passed - -2020)

The provisions of this Chapter regulating adult business non-performer employment applications are not intended to be exclusive, and compliance therewith shall not excuse non-compliance with any other regulations pertaining to the adult business licensing provisions as adopted by the County Board of Supervisors.

(Ord. 4239, passed - -2014; Am. Ord. 4378, passed - -2020)

This Chapter and each Section and provision of said Chapter hereunder, are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said Chapter, or the application thereof to any person or circumstance is held to be invalid, the remaining Sections or provisions and the application of such Sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such Sections and provisions would have been passed independently of such Section or provision so known to be invalid. Should any procedural aspect of this Chapter be invalidated, such invalidation shall not affect the enforceability of the substantive aspects of this Chapter.

(Ord. 4239, passed - -2014; Am. Ord. 4378, passed - -2020)