San Bernardino Municipal Code Ch. 5.14 Entertainment - Dances and Adult Entertainment

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

DINE AND DANCE CLUBS and NIGHT CLUBS. All hotels, restaurants, cafés, road houses, inns, taverns, bars or any place open to the public, wherein or whereat beverages, meals or dinners are served, and where the public and patrons thereof may dance, or where entertainers may perform.

ENTERTAINMENT.

(1) Any act, play, review, pantomime, scene, dance act, song and dance act, concert or gathering and playing of band(s) and/or musical groups, performed by one or more persons, whether or not such person or persons are compensated for such performance, when the same is performed at a public dance hall, public dance, dancing club, dine and dance club or night club;

(2) Any fashion or style show, except:

(a) When the same is conducted by a non-profit club, organization or association, as a part of the social activities of such club, organization or association to which members of the general public are not invited; or

(b) When the same is conducted by a person as a part of a commercial business which primarily involves the sale or manufacture of clothing or wearing apparel.

(3) The following is included in the term ENTERTAINMENT: the presence of any performer, dancer, employee, agent, model or other person, collectively and/or individually referred to as entertainer, in any place of ENTERTAINMENT, as defined in this section, who engages in any “specified sexual activity” (as that term is defined in Chapter 19.06) not otherwise prohibited by local, state or federal law, or who exposes any specified anatomical part (as that term is defined in Chapter 19.06) not otherwise prohibited by local, state or federal law, or who performs in attire commonly referred to as pasties or a G-string, or any other opaque covering which does not expose the areola or nipples of the female breast, and while covering the natal cleft and pubic area covers less than one inch on either side of the entire length of the natal cleft and two inches across the pubic area. ENTERTAINMENT, as described in this definition, shall be subject to all regulations as described in Chapter 19.06, including, but not limited to, the requirement for a development permit II.

LICENSE. A license required and issued pursuant to the provisions of this chapter.

NOTICE. Written notice, given by personal service upon the addressee or given by United States mail, postage prepaid, addressed to the person to be notified at his or her last known address. Service of such NOTICE shall be effective upon the completion of personal service or upon the placing of the same in the custody of the United States Postal Service.

PUBLIC DANCE, DANCING CLUB or PUBLIC DANCE HALL. Any place open to the public wherein or whereat the public may engage in dancing as a result of the entertainment provided, including places and dances where admission thereto is by membership or other special privilege.

(Ord. MC-1100, passed 7-24-2001; Ord. MC-1129, passed 8-20-2002)

(A) It is unlawful for any person, firm, corporation or association of persons to operate, conduct or carry on any act of entertainment, public dance hall, public dance, dancing club, dine and dance club or night club, as the same are defined in § 5.14.010, without first obtaining a license to do so as provided in this chapter.

(B) Notwithstanding the first sentence of this section, the requirements of this chapter do not apply to not-for-profit I.R.C. § 501(c)(3) religious organizations, religious assemblies or institutions or the religious exercise of a person, or to schools, school districts and/or institutions of higher learning.

(Ord. MC-1100, passed 7-24-2001)

Any person required to obtain a license pursuant to this chapter shall file a written application therefor with the City Clerk and shall be accompanied by a fee established by resolution of the City Council which shall be no more than necessary to cover the costs of processing and investigation.

The following information shall be submitted to the City Clerk by the owner at the time of applying for a license:

(A) A description of all proposed entertainment business activities and anticipated occupancy;

(B) A site plan describing the building and/or unit proposed for the entertainment establishment, a fully dimensioned interior floor plan and the following information:

(1) Entry program. For each type of event, the entry program will describe how patrons will enter the entertainment establishment, including a map of the proposed waiting line, estimated length of time a waiting line will exist, security searches or identification verification at entrance;

(2) Map showing parking and loading areas. An area plan shall be submitted identifying parking areas to be used by customers, including the number of spaces available and loading areas to be used by the entertainers;

(3) Security company staffing and equipment. For each type of event, the number of security guards, their responsibilities and equipment to be used;

(4) Maintenance provisions. For each type of event, the need and number of trash receptacles, crowd control barriers and sanitation facilities;

(5) Clean-up provisions. For each type of event, description of the need for and provision of area clean-up; and

(6) Noise control provisions. For each type of event, description of how the noise standards of this chapter shall be met.

(C) The application shall contain the following information:

(1) The owner’s name, residence street address and mailing address, if different, and state driver’s license number and any and all aliases;

(2) The name under which the entertainment enterprise is to be operated;

(3) The telephone number of the enterprise and the address and legal description of the parcel of land on which the enterprise is located;

(4) The date on which the owner acquired the enterprise for which the license is sought, and the date on which the enterprise began or will begin operations at the location for which the license is sought; and

(5) If the enterprise is owned and/or operated by a corporation, or other limited liability entity, or association of persons, the name of each officer and/or director of the corporation, limited liability entity or association of persons. If the enterprise is owned and or operated by a partnership, the name of each general partner of the partnership;

(D) A statement under oath that the owner has personal knowledge of the information contained in the application and the information contained is true and correct;

(E) A statement that the owner has read and understands the provisions of this chapter;

(F) A statement whether the owner previously operated in this or any other county, city or state under an entertainment establishment license/permit or similar business license, and whether the owner has ever had a license revoked or suspended and the reason therefor, and the business entity or trade name under which the owner operated that was subject to the suspension or revocation; and

(G) If the premises are being rented or leased or being purchased under contract, a copy of such lease or contract shall accompany the application.

(Ord. MC-1100, passed 7-24-2001)

(A) Application approval process.

(1) Upon receipt of an application for an entertainment license, the City Clerk shall conduct an investigation to determine if the proposed business is in compliance with the provisions of this chapter. The investigation shall include immediately forwarding copies of the application to the Police Department, Development Services and the Fire Department for its own independent investigation. Each department shall make recommendations as to the issuance or denial of the license and forward said results to the City Clerk within 20 days of receipt of the application. The City Clerk shall, within 30 days of receipt of a complete license application, approve and issue the license if all the requirements of this section have been met. If the City Clerk determines that the application does not satisfy the requirements of this chapter, he or she shall deny the application. If no determination is made by the City Clerk within 30 days of receipt of a complete license application, then the applicant may commence operations under a temporary license, subject to strict compliance with this chapter, until the City Clerk’s determination.

(2) The applicant shall be served with written notice of the decision. Notice shall be personally served or served by deposit in the United States mail, first class postage prepaid, at the address shown on the application. Service shall be deemed complete upon personal service or deposit in the United States post mail.

(B) Standards for approval of license. The City Clerk shall approve and issue an entertainment license if the application and evidence submitted show that:

(1) The operation, as proposed by the applicant, if permitted, would comply with all applicable laws, including, but not limited to, the city’s building, fire, zoning and health regulations; and

(2) The applicant has not knowingly made any false, misleading or fraudulent statement of fact in the license application process, or on any document required by the city in conjunction therewith; the applicant’s age is 18 years or more; and the applicant has paid the required application fees.

(Ord. MC-1100, passed 7-24-2001; Ord. MC-1129, passed 8-20-2002)

The following operational standards shall apply to all entertainment described in § 5.14.010.

(A) No operator, entertainer or employee of a place of entertainment shall permit to be performed, offer to perform, perform or allow patrons to perform sexual intercourse, oral or anal copulation, lap or straddle dancing, fondling or stimulation of human genitals, pubic region, buttocks or female breasts.

(B) No operator, entertainer or employee of a place of entertainment shall encourage or permit any person upon the premises to lap or straddle dance, touch, caress or fondle the breasts, buttocks, anus or genitals of any other person.

(C) If the place of entertainment is licensed to serve alcoholic beverages, the licensee shall abide by the rules and regulations set forth by the State Department of Alcoholic Beverage Control.

(D) No person shall perform for patrons any entertainment described in § 5.14.010 except upon a stage at least 18 inches above the level of the floor which is separated by a distance of at least six feet from the nearest area occupied by patrons, and no patron shall be permitted within six feet of the stage while the stage is occupied by an entertainer. This division (D) shall not apply to individual viewing areas where the stage is completely separated from the viewing area, floor to ceiling, by plexiglass or other clear permanent barrier.

(E) Stage or entertainment areas shall not be open to view from outside the premises.

(F) Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance/exit to the business.

(G) No exterior door or window shall be propped or kept open at any time during hours of operation; any exterior windows shall be covered with opaque covering at all times.

(H) No person under the age of 18 years shall be permitted within the premises at any time during hours of operation.

(I) The place of entertainment shall maintain separate restroom facilities for male patrons and employees and female patrons and employees. Male patrons and employees shall be prohibited from either looking into or using the restrooms for females and female patrons and employees shall be prohibited from using the restrooms for males except to carry out the duties of repair, maintenance and cleaning of the restroom facilities. Restrooms shall not contain television monitors or other motion picture or video projection recording or reproduction equipment.

(J) The premises shall provide separate dressing room facilities for male and female entertainers which are exclusively dedicated to the entertainer’s use.

(K) The licensee shall provide an entrance/exit to the premises for entertainers which is separate from the entrance/exit used by patrons.

(L) No entertainer shall have physical contact with any patron and no patron shall have physical contact with any entertainer while on the premises.

(M) All areas of the place of entertainment accessible to patrons shall be illuminated at least to the extent of two foot-candles (measured as units of illuminance), minimally maintained and evenly distributed at ground level.

(N) Individual viewing areas shall be operated and maintained without any hole or other opening or means of direct communication or visual or physical access between the interior space of two or more individual viewing areas.

(O) No individual viewing area may be occupied by more than one person at any one time.

(P) All individual viewing areas shall be physically arranged in such a manner that the entire interior portion of the individual viewing area is directly visible from aisles and public areas of the premises. Visibility into the individual viewing rooms shall not be blocked or obscured by doors, curtains, partitions, drapes or any other obstruction whatsoever.

(Q) No patron, guest or invitee shall directly pay or give any gratuity to any performer, dancer, employee or model and no dancer, performer, employee or model shall solicit any pay or gratuity from any patron.

(R) No owner or other person with managerial control over an adult business (as that term is defined in Chapter 19.06) shall permit any person on the premises of the adult business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, and/or the female breasts with less than a fully opaque covering over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specific anatomical part required to be covered.

(S) (1) If the occupancy limit of that portion of the premises where entertainment is performed is greater than 200 persons, at least one security guard will be on duty outside the premises, patrolling the grounds and parking areas at all times while the entertainment is provided. An additional security guard will be on duty inside the premises if the occupancy exceeds 400 persons.

(2) The security guards shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of the chapter. No security guard required pursuant to this division (S)(2) shall act as a door person, ticket seller, ticket taker or admittance person while acting as a security guard. An additional security guard shall be provided if one security guard is to be utilized for the purpose of conducting searches on patrons. All security guards shall be licensed in accordance with Cal. Business and Professions Code, §§ 7582 et seq.

(T) The premises within which the entertainment is located shall provide sufficient sound absorbing insulation so that noise generated inside the premises shall not be audible anywhere on adjacent property or public right-of-way or within any other building or other separate unit within the same building.

(U) All signage conforms to the standards applicable in Title 19.

(V) Every place of entertainment shall have a manager on the premises at all times when entertainment is performed.

(W) The place of entertainment must not operate or be open between the hours of 2:00 a.m. and 8:00 a.m.; however, the restriction herein imposed applies only to permitting or allowing the public to dance and to the providing of entertainment of any sort other than mechanical music between such hours and is not deemed to prevent or make unlawful the serving of meals or refreshments between such hours.

(X) All business activities must take place within the enclosed structures, unless otherwise permitted by the city.

(Y) The City Clerk shall impose conditions prior to approval of an application which are deemed necessary by the Police Department, Development Services and the Fire Department to ensure compliance with the provisions of this chapter or to protect the public health and safety. Such conditions shall be limited to the following: hours of operation; maximum occupancy; fire and life and public safety issues; fire suppression; exterior signage prohibiting loitering and littering; clean-up of premises; location of the business; amount and type of calls for police service in the area; exterior lighting; existence of public telephones; and security guards. The conditions imposed shall include the posting of a bond or cash equivalent for the clean-up of premises, dependent upon the physical condition of past premises as a result of past entertainment events of applicant.

(Ord. MC-1129, passed 8-20-2002)

No entertainment establishment license shall 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, and any such sale, transfer or assignment or attempted sale, transfer or assignment shall be deemed to constitute a voluntary surrender of such license, and such license shall be thereafter null and void. A license held by an individual in the name of a corporation or partnership is subject to the same rules of transferability as contained above. License shall be valid only for the exact location specified in the permit. Each license shall be posted in a conspicuous place in or upon the premises for which it is issue and shall be shown to any city official upon demand.

(A) For every person, firm, corporation or association of persons conducting, operating, managing or carrying on a public dance, dance hall, dancing club, dine and dance club or night club as the same are defined in § 5.14.010, the license fee shall be at the rate set by resolution adopted by the Mayor and City Council.

(B) Every person, firm, corporation or association of persons operating, conducting or carrying on a public dance where the owner, manager or operator does not operate, conduct or carry on a public dance at least one night in each month shall pay a license fee at the rate set by resolution adopted by the Mayor and City Council.

Licenses issued pursuant to this chapter shall be valid for a period of one year or until revoked or abandoned.

A bona fide church, non-profit organization or charitable organization recognized as such under state law, bona fide lodge, fraternal organization or fraternal society which carries on such dances solely for the amusement or entertainment of its bona fide members, or for the purpose of securing funds for such organization for its own operating needs or for charitable purposes, shall be exempt from payment of filing, processing and license fees.

The City Clerk shall suspend or revoke a permit issued under the provisions of this chapter for any of the following reasons:

(A) The licensee has ceased to meet the requirements for issuance of license;

(B) The applicant gave materially false, fraudulent or misleading information on the application;

(C) The operation, as conducted by the licensee, does not comply with all applicable laws, including, but not limited to, the city’s building, fire, zoning and health regulations;

(D) Excessively loud music or noise from the establishment for which the permit was issued interferes with the peace and quiet of the neighborhood;

(E) The place of entertainment has been operated in violation of any of the requirements of this chapter;

(F) The license holder is convicted of a felony or misdemeanor occurring upon, or relating to the premises or lot upon which the place of entertainment is located which offense is classified by the state as an offense involving any sexual crime against children, sexual abuse, rape, distribution of obscene material or material harmful to minors, prostitution or pandering, including, but not necessarily limited to, the violation of any crime requiring registration under Cal. Penal Code, § 290, or any violation of Cal. Penal Code, §§ 243.3, 261, 261.5, 264.1, 266, 266a through 266k, inclusive, 267, 286, 286.5, 287, 288, 311 through 311.10, inclusive, 314, 315, 316 or 647; or

(G) If any person or persons is (are) convicted of a felony or misdemeanor for an offense set forth in division (F) above as a result of such person’s activity on the premises or property on which the place of entertainment is located, and the person or persons were employees, contractors or agents of the place of entertainment at the time the offenses were committed.

(A) Any applicant aggrieved by the decision of the City Clerk with reference to the issuance, conditional issuance, denial, suspension or revocation of a license may appeal to the hearing officer for the city. The hearing officer shall be appointed by the Mayor to hear all appeals under this section for a fixed term not to exceed two years; after which, such hearing officer shall be ineligible for reappointment until after one year has passed. Upon the timely filing of an appeal from the denial, suspension or revocation of a license, the decision of the City Clerk is stayed until the appeal is decided by the hearing officer.

(B) The right to appeal to the hearing officer from the denial, suspension or revocation of any license required by this chapter shall terminate upon the expiration of 15 days following the deposit of a certified letter in the United States Post Office advising the applicant of the action of the City Clerk and of his or her right to appeal such action to the hearing officer.

(C) The hearing shall be held within 20 days of the receipt by the City Clerk of the appeal, or at the next regularly scheduled meeting of the hearing officer, whichever is sooner.

(D) The hearing officer shall render his or her decision within five days from the conclusion of the hearing. Said decision shall be sent by certified mail. The City Clerk or any applicant aggrieved by the decision of the hearing officer shall have the right to appeal to the City Planning Commission. Upon the timely filing of an appeal, the decision of the hearing officer is stayed until the appeal is decided by the Planning Commission. The right to appeal to the City Planning Commission shall terminate upon the expiration of 15 days following the deposit of said decision by certified mail and advising the applicant of his or her right to appeal such decision to the City Planning Commission. The appeal hearing before the City Planning Commission shall be held within 20 days of the receipt by the City Clerk of the appeal request. The Planning Commission shall render its decision within 14 days from the conclusion of the hearing. The decision of the Planning Commission shall be final and conclusive and shall not be subject to appeal to the Mayor and City Council. Pursuant to Cal. Code of Civil Procedure, § 1094.8, any action to review the decision of the Planning Commission shall be filed and served not later than 21 calendar days following the Planning Commission’s decision unless the parties jointly waive the time limit.

(E) The city shall comply with all of the requirements of Cal. Code of Civil Procedure, § 1094.8 and shall take all lawful steps to ensure that any applicant aggrieved by its decision shall be afforded prompt judicial review of said Planning Commission’s decision.

(Ord. MC-1058, passed 9-21-1999; Ord. MC-1059, passed 10-5-1999; Ord. MC-1129, passed 8-20-2002)

Fees and licenses required by this chapter shall be in addition to any license, permit or fee required under any other chapter of this code.

(A) The provisions of this chapter shall apply prospectively and shall not operate to revoke any valid live entertainment license in effect as of the date of the ordinance codified in this chapter.

(B) The provisions of this chapter shall not be deemed to require an entertainment license for the following:

(1) For the use of a radio, record player, juke box or television receiver in any establishment;

(2) For the use of a piano or organ in any establishment;

(3) For any entertainment provided for members and their guests at a private club where admission is not open to the public; and

(4) For the playing of background music by any electronic means or instrument in conjunction with the service and consumption of food.

In the event that any provision of this chapter, or any part thereof, or any application thereof to any person or circumstance, is for any reason held to be unconstitutional or otherwise invalid or ineffective by any court of competent jurisdiction on its face or as applied, such holding shall not affect the validity or effectiveness of any of the remaining provisions of this ordinance, or any part thereof, or any application thereof to any person or circumstance or of said provision as applied to any other person or circumstance. It is declared to be the legislative intent of the city that this chapter would have been adopted had such unconstitutional, invalid or ineffective provisions not been included herein.

Any person who violates § 5.14.020 is guilty of a misdemeanor, punishable upon conviction in accordance with § 1.12.010(A). Each and every day during which such person violates § 5.14.020 shall constitute a separate offense chargeable under this section.

(Ord. MC-1052, passed 7-19-1999; Ord. MC-1051, passed 7-19-1999; Ord. MC-1050, passed 7-12-1999; Ord. MC-1129, passed 8-20-2002)