§ 19.100

The purpose of this Chapter is to establish requirements and criteria for establishment or expansion of an adult-oriented business. The intent of this Chapter is to regulate adult-oriented businesses which, because of their very nature, are believed to have the potential for recognized significant secondary effects on the community which include, but are not limited to: depreciated property values and increased vacancies in residential and commercial areas in the vicinity of the adult-oriented businesses; higher crime rates, noise, debris or vandalism in the vicinity of adult-oriented businesses; and blighting conditions such as low level maintenance of commercial premises and parking lots which thereby have a deleterious effect upon adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the neighborhoods in the vicinity of the adult-oriented businesses while at the same time protecting the First Amendment rights of those individuals who desire to own, operate or patronize adult-oriented businesses. Nothing in this Chapter is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any City ordinance or any statute of the state of California regarding public nuisances, unlawful exposure, sexual conduct, lewdness or obscene or harmful matter or the exhibition or public display thereof.

The regulations contained in this Chapter apply to all adult-oriented businesses, as described herein.

A.

Adult Bookstore. Any establishment, which, as a regular and substantial course of conduct, displays and/or distributes adult merchandise, books, periodicals, magazines, photographs, drawings, sculptures, motion pictures, videos, slides, films or other written, oral or visual representations which are distinguished or characterized by an emphasis on a matter depicting, describing or relating to specified sexual activities or

specified anatomical parts. (See "Adult-Oriented Business" for definition of regular and substantial portion of its business.)

B.

Adult Cabaret. A nightclub, bar, lounge, restaurant or similar establishment or concern which features, as a regular and substantial course of conduct, any type of live entertainment, films, motion pictures, videos, slides, other photographic reproductions, or other oral, written, or visual representations which are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

C.

Adult Hotel/Motel. A motel, hotel or similar commercial establishment which (1) offers public accommodations, for any form of consideration, which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, 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 10 hours; or (3) allows a tenant or occupant to sub-rent the sleeping room for a time period of less than 10 hours.

D.

Adult Model Studio. Any premises where there is furnished, provided or procured a figure model or models who pose in any manner which is characterized by its emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical parts where such model(s) is being observed or viewed by any person for the purpose of being sketched, painted, drawn, sculptured, photographed, filmed, or videotaped for a fee, or any other thing of value, as a consideration, compensation or gratuity for the right or opportunity to so observe the model or remain on the premises. An adult model studio shall not include any live art class or any studio or classroom which is operated by any public agency, or any private educational institution authorized to issue and confer a diploma or degree.

E.

Adult Motion Picture Arcade. Any business establishment or concern which, as a regular and substantial course of conduct, provides coin- or slug-operated or manually or electronically controlled still, motion picture or video machines, projectors, or other image-producing devices that are maintained to display images to an individual in individual viewing areas when those images are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

F.

Adult-Oriented Business. Any business establishment or concern which as a regular and substantial course of conduct performs as an adult bookstore, adult theater, adult motion picture arcade, adult cabaret, performer, adult model studio or adult hotel/motel (but not clothing-optional hotel/motel); any business

establishment or concern which as a regular and substantial course of conduct sells or distributes sexually oriented merchandise or sexually oriented material; or any other business establishment or concern which as a regular and substantial course of conduct offers to its patrons products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts. Adult-oriented business does not include those uses or activities, the regulation of which is preempted by state law. Adult-oriented business shall also include any business establishment or concern which, as a regular and substantial course of conduct, provides or allows performers, models, actors, actresses or employees to appear in any place in attire which does not opaquely cover specified anatomical parts. For the purposes of this Chapter, a business establishment or concern has established the provision of products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts as a regular and substantial course of conduct when one or more of the following conditions exist:

1.

The area devoted to adult merchandise and/or sexually oriented material exceeds more than 30 percent of the total display or floor space area open to the public.

2.

The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on specified sexual activity or specified anatomical parts at least four times in any month in any given year.

3.

The regular and substantial course of conduct of the business consists of or involves the sale, trade, display or presentation of services, products, or entertainment which are characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical parts.

G.

Adult Theater. A business establishment or concern which, as a regular and substantial course of conduct, presents live entertainment, motion pictures, videos, slide photographs or other pictures or visual reproductions which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

H.

Live Art Class. Any premises on which all of the following occur: there is conducted a program of instruction involving the drawing, photographing or sculpting of live models exposing specified anatomical parts; instruction is offered in a series of at least two classes; the instruction is offered indoors; an instructor is present in the classroom while any participants are present; and preregistration is required at least 24 hours in advance of participation in the class.

I.

Sex Club. Any establishment not primarily dedicated to providing overnight lodging accommodations, including a private club, which as a regular and substantial course of conduct permits persons to engage in specified sexual activities in any public or semi-public portion of the establishment or which provides any private room to persons more than once in a 20-hour period in which persons are permitted to engage in specified sexual activities. For the purpose of this Chapter, a public or semi-public portion of an establishment shall mean any portion of the establishment in which invitees of the establishment are permitted access and which is not let, leased or rented more than once in a 20-hour period to persons who are entitled to exclusive use of the room. The above notwithstanding, a sex club is also any place which represents itself to any person or group of persons as a place for persons to engage in specified sexual activities.

J.

Sexually Oriented Material. Any element of sexually oriented merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, or other written, oral or visual representation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter depicting, describing or relating to specific sexual activities or specified anatomical parts.

K.

Sexually Oriented Merchandise. Sexually oriented implements and paraphernalia such as, but not limited to, dildos, auto sucks, sexually oriented vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sadomasochistic activity.

L.

Specified Anatomical Parts. 1) Less than completely and opaquely covered human genitals; pubic region; buttocks; or female breast below a point immediately above the top of the areola; or 2) human male genitals in a discernibly turgid state, even if completely and opaquely covered.

M.

Specified Sexual Activities. 1) Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship, the use of excretory function in the context of a sexual relationship, or any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, sapphism, and zooerastia; or 2) clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or 3) use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; or 4) fondling or touching of nude human genitals, pubic region, buttocks or female breast; or 5) masochism, erotic or sexually oriented torture, beating or the infliction of pain; or 6) erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or 7) human excretion, urination, menstruation, vaginal or anal irrigation; or 8) striptease or the removal of clothing to the point where specified anatomical parts are not opaquely covered.

19.100.040 - Permit Required

A.

No adult-oriented business shall be permitted to operate, engage in, conduct or carry on business in the City unless the owner of the business first obtains both an Adult-oriented Business Permit and a Business License from the City, as well as any other license or permit otherwise required by law.

B.

Sex clubs, as defined in Section 19.100.030, are prohibited.

A.

The property owner, or authorized agent of the property owner, is eligible to request an Adult-oriented Business Permit. A single Adult-oriented Business Permit shall suffice for the operation of any adultoriented business in the City.

B.

Submission of Application. All applications for an Adult-oriented Business Permit will be filed with the City Clerk and forwarded to the Community Development Department for processing. The following information is required at the time an Adult-oriented Business Permit is submitted:

1.

A completed City preprinted Adult-oriented Business Permit application signed by the property owner or authorized representative.

2.

A nonrefundable deposit or fee as set forth by Ordinance or Resolution of the City Council.

3.

A Letter of Justification describing the proposed project and explaining how it will comply with the standards contained in Section 19.100.070 and all other information as required by the preprinted City Adult-oriented Business Permit application.

19.100.060 - Application Process

A.

Determination of Completeness. Within 10 business days following the receipt of an application pursuant to this Chapter, the Community Development Director (Director) will determine whether the application contains all the information required by the provisions of this Chapter. If it is determined that the application is not complete, the applicant will be notified in writing within five business days of the date such determination is made that the application is not complete and the reasons therefore, including the

additional information required to complete the application form. The applicant will have 30 calendar days to submit additional information to render the application complete. Failure to do so within the 30-day period will render the application void. Within five business days following the receipt of an amended application or supplemental information, the Director will again determine whether the application is complete in accordance with the procedures set forth in this Subsection. Evaluation and notification will occur as provided above until such time as the application is found to be complete. The applicant will be notified within five days of the date the application is found to be complete. All notices required by this Chapter will be deemed given upon the date they are either deposited in the United States mail or on the date upon which personal service of such notice is provided.

B.

Investigation of Application. Upon determining that an application for an adult-oriented business is complete, the sheriff's department will, within 30 calendar days of receipt of the application, conduct an investigation of the information contained in the application to determine if the proposed adult-oriented business is in compliance with the provisions of this Chapter. Such investigation may include providing copies of the application to the Director of Public Works, City Engineer, Community Development Director or other officials for their investigation and report thereon.

C.

Issuance of Permit. The Director will issue an Adult-oriented Business Permit within 30 days of receipt of a complete application if the standards contained in Section 19.100.070 are met. If any of the standards cannot be met, the application will be denied.

D.

Appeal of Decision. Any applicant will be permitted to appeal the decision of the Director in the manner provided in Section 19.28.120 (Appeals) of this Development Code.

E.

Permits Nontransferable. No Adult-oriented Business Permit may be sold, transferred or assigned by any permittee 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 permit and the permit shall be thereafter null and void. An Adultoriented Business Permit held by a corporation or partnership is subject to the same rules of transferability as contained above. For the purposes of this Section, a corporation is sold, transferred, or assigned when in excess of 30 percent of its stock is sold, transferred or assigned.

F.

Use Specific. Any change in the nature or composition of the adult-oriented business from one element of an adult-oriented business to another element of an adult-oriented business shall also render the permit null and void.

G.

Off-site Activity Uses Prohibited. An Adult-oriented Business Permit shall only be valid for the exact location specified on the permit. Off-site adult-oriented business activity is prohibited.

A.

Locational Limitations.

1.

The adult-oriented business shall not be located within 300 feet of any existing residence. The adultoriented business shall not be located within 500 feet of any lot upon which there is properly located a public park, school or mortuary or within 500 feet of any lot approved to be used by a religious institution for religious activities at least three times per week.[1 ] The adult-oriented business shall not be located on property adjacent to another adult-oriented business. For the purpose of this Section, "adjacent property" shall mean property with a common boundary, excluding intervening easements and rights-of-way, whether such rights-of-way are held by the City in fee or otherwise. By way of example, an adult-oriented business shall not be permitted to operate at a location across the street from another adult-oriented business if, but for the existence of the street, the property lines of the businesses would be contiguous.

2.

The adult-oriented business shall not be located completely or partially within any mobile structure or pushcart.

3.

The adult-oriented business complies with the development and design requirements of the land use district in which it is to be located.

B.

Parking Requirements. The parking requirements for adult-oriented businesses shall be as follows:

1.

Bookstores/retail establishments. One parking space per 300 square feet of gross floor area.

2.

Theaters. One parking space for each three fixed seats, or one parking space for each 24 square feet of gross floor area.

3.

Cabarets. One parking space for each three fixed seats, or one parking space per 35 square feet of gross floor area.

Motion picture arcade. One parking space for each individual viewing area plus one parking space per employee.

5.

Motel/hotel. One parking space per guest room.

C.

The adult-oriented business shall comply with the City's sign regulations in Chapter 19.88 (Signs).

D.

Misdemeanor or Felony. Neither the applicant, if an individual, nor any of the officers, shareholders owning in excess of 30 percent of the corporation's shares, or general partners, if a corporation or partnership, of the adult-oriented business have been found guilty within the past two years of a misdemeanor or felony classified by the state as a sex-related offense and have not violated any of the provisions of an Adultoriented Business Permit or similar permit or license in any city, county, territory or state.

E.

Regulation of Public Restroom Facilities. The adult-oriented business shall provide separate restroom facilities for male and female patrons. The restrooms shall be free from sexually oriented materials and sexually oriented merchandise. Only one person shall be allowed in the restroom at any time, unless otherwise required by law, in which case the adult-oriented business shall employ a restroom attendant of the same sex as the restroom users who shall be present in the restroom during operating hours. The attendant shall prevent any person(s) from engaging in any specified sexual activities (except such regular uses for which a public restroom is intended) within the public portion of a restroom; shall ensure that no person of the opposite sex is permitted in the restroom; and shall ensure that not more than one person enters a stall at any one time by watching the public portion of the restroom. This Section shall not require the attendant to look into the private stalls.

F.

Lighting Requirements. All areas of the adult-oriented business shall be illuminated at a minimum of the following foot-candles, minimally maintained and evenly distributed at ground level:

Bookstores .....20 foot-candles

Retail Establishments .....foot-candles

Theater or Cabaret (except during performances, at which times the lighting shall be at least 1.25 foot candles) .....5 foot-candles

Motion Picture Arcade .....10 foot-candles in public areas

Individual Viewing Booths .....1.25 foot-candles

Motion Picture Theater (except during performances, at which times the lighting shall be at least 1.25 foot candles) .....10 foot-candles

Motel/Hotel .....20 foot-candles in public areas

G.

Individual Viewing Area Standards.

1.

The individual viewing areas of the adult-oriented business shall be operated and maintained with no holes, openings or other means of direct visual or physical access between the interior space of two or more individual viewing areas.

2.

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

3.

The interior of the adult-oriented business shall be configured such that there is an unobstructed view of every public area of the premises, including but not limited to the interior of all individual viewing areas, from a permanent security station physically demarked in the establishment which is no larger than 32 square feet of floor area with no single dimension being greater than 8 feet in a public portion of the establishment. No public area, including but not limited to the interior of any individual viewing area, shall be obscured by any door, curtain, wall, two-way mirror or other device which would prohibit a person from seeing into the interior of the individual viewing area from the manager's station. A security officer shall be stationed in the security station at all times the business is in operation or open to the public in order to enforce all rules and regulations. No individual viewing area shall be designed or operated to permit occupancy of more than one person at a time. "Individual viewing area" shall mean any area designed for occupancy of 10 or fewer persons for the purpose of viewing live performances, pictures, movies, videos or other presentations.

4.

The adult-oriented business shall not stage any special events, promotions, festivals, concerts or similar events which would increase the demand for parking beyond the approved number of spaces for the particular use.

H.

A traffic study has been prepared for the adult-oriented business in conformance with industry standards. The applicant shall demonstrate that the project will not result in a reduction in any roadway level of service below that level of service designated in the General Plan for that roadway.

I.

The adult-oriented business shall comply with the Noise Element of the General Plan, Interior and Exterior Noise Standards and any mitigation measures necessary to reduce the project's noise impacts to the City's articulated noise standard.

J.

The adult-oriented business shall comply with all building and construction standards of the Uniform Building Code, Chapter 24 hereof, Title 24 of the California Code of Regulations, and all other federal, state and City-adopted standards for the specific use.

K.

Operational Standards.

1.

The adult-oriented business shall not allow admittance to any person under the age of 18 if no liquor is served, or under the age of 21 if liquor is served.

2.

The adult-oriented business shall not conduct any massage, tattooing or acupressure on the premises or operate escort services from the premises.

3.

Material or Merchandise. The adult-oriented business shall not display any sexually oriented material or sexually oriented merchandise which would be visible from any location other than from within the adultoriented business.

4.

Hours of Operation. With the exclusion of adult-oriented hotels, the adult-oriented business shall not operate between the hours of 1:00 a.m. and 9:00 a.m.

5.

Whenever live entertainment is provided, patrons shall be physically separated from performers by a buffer zone of at least 6 feet. Such physical separation shall consist of an actual physical rail, 32 inches high running no less than 6 feet around the outside perimeter of the area in which the entertainment is provided. Live entertainment, for the purposes of this requirement, shall mean any existent display by a human being which is characterized by an emphasis on specified anatomical parts or specified sexual activities. This provision shall not apply to an individual viewing area where the stage is completely separated from the individual viewing area by a floor to ceiling permanent, solid barrier.

6.

No patron will directly pay or give any gratuity to any performer, and no performer will solicit or accept any directly paid gratuity from any patron. For purposes of this Section, the phrase "directly pay" shall mean the person-to-person transfer of the gratuity. This Section shall not prohibit the establishment of a non-human gratuity receptacle placed at least 6 feet from the stage or area in which the performer is occupying.

Prohibition against Physical Contact. No performer will intentionally have any physical contact with any patron and no patron will intentionally have any physical contact with any performer while on the premises of an adult-oriented business.

8.

Security Measures.

a.

The adult-oriented business shall provide a security system that visually records and monitors all parking lot areas.

b.

At least one security guard will be on duty outside the premises, patrolling the grounds and parking lot at all times live entertainment is offered. The security guard shall be charged with preventing violations of law and enforcing the provisions of this Chapter. All security guards will be uniformed so as to be readily identifiable as a security guard by the public. No person acting as a security guard shall act as a doorman, ticket taker or seller, or similar functionary while acting as a security guard. For all adult-oriented businesses providing live entertainment, an additional security guard will be provided with each increase in maximum occupancy of 200 persons.

A.

Inspections. The permittee shall permit officers of the City, the County of San Bernardino, and each of their authorized representatives to conduct unscheduled inspections of the premises of the adult-oriented business for the purpose of ensuring compliance with the law at any time the adult-oriented business is open for business or occupied.

B.

Revocation Grounds. The Director may suspend or revoke an Adult-oriented Business Permit when he/she discovers that any of the following has occurred:

1.

Any of the requirements contained in Section 19.100.070 above ceases to be satisfied.

2.

The application contains incorrect, false or misleading information.

3.

The applicant, within the last two years, has been convicted of any felony or misdemeanor which is classified as a sex or sex-related offense, any violation of this Development Code, any violation of the

City's massage ordinance, or any violation of any other adult business ordinance of any other city, county or state.

4.

Any person has been convicted of a sex-related offense as a result of his/her activity on the premises of the adult-oriented business.

5.

Any person(s) has engaged in any specified sexual activities on the premises.

C.

Revocation Hearing Notice. Upon determining that the grounds for permit revocation exist, the Director will provide the permittee with written notice of the proposed revocation by certified mail addressed to the street address of the business as shown on the Adult-oriented Business Permit application. The notice of the proposed revocation will specify grounds for the proposed revocation as well as the date, time and location at which the hearing will be held. The City Manager or his/her designee will hold the revocation hearing as provided below:

1.

Revocation Hearing. The City Manager or his/her designee will hold a hearing on a proposed permit revocation not later than 30 days after issuance of the notice of revocation unless an extension of time is agreed to by both the City and the permittee. At the hearing, the Director or his/her designee will present evidence and witnesses, as necessary, to establish the cause of the revocation of the permit. The permittee, at the hearing, may be represented by legal counsel, may present evidence and witnesses, and may cross-examine City witnesses. The Director will be afforded the same rights.

2.

After the hearing held pursuant to Subsection (1) above, the City Manager or designee will render a decision on the proposed revocation within 20 business days from the hearing date. The City Manager or designee may suspend or revoke the Adult-oriented Business Permit if he/she determines that any of the grounds of revocation contained herein have been proven. A copy of the written decision will be mailed by certified mail to the permittee at the address listed in the Adult-oriented Business Permit application. The decision of the City Manager or his/her designee will be final and conclusive.

D.

Maintenance of Status Quo Pending Decision; Judicial Review. The status quo pending the issuance of a decision on any revocation or appeal hearing provided under this Chapter will be maintained until such time as the hearing has been concluded and a written decision made. Any decision denying an application or suspending or revoking a permit will be judicially reviewable pursuant to a writ of administrative mandate under California Code of Civil Procedure Section 1094.5. The status quo will also be maintained pending Superior Court's issuance of the judicial decision on the writ petition.

E.

Except as otherwise provided, any person aggrieved by a decision of the Director under this Chapter may file an appeal in the manner provided in the Section 19.128.120 (Appeals), and the appeal shall be noticed, heard and decided as provided therein.

F.

No person, corporation, partnership or member thereof or any other entity whose Adult-oriented Business Permit has been revoked may obtain an Adult-oriented Business Permit for a business within two years of the date it stops operating.

A.

Every person, whether acting as an individual owner, employee of the owner, permittee, or operator or employee of the permittee, or whether acting as a mere helper for the owner, permittee employer or operator, or whether acting as a participant or worker in any way, who operates or conducts or who participates in the operation of an unpermitted adult-oriented business, or who violates any provisions of this Chapter, shall be guilty of a misdemeanor and shall be fined not more than $1,000.00 for each offense or imprisoned for not more than six months in the county jail for each offense, or both. Each day the violation continues shall be regarded as a separate offense for which the full penalty may be imposed.

B.

Any establishment operated, conducted or maintained contrary to the provisions of this Chapter is unlawful and a public nuisance, and the City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, 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 court or courts as may have jurisdiction to grant such relief as will abate or remove such adult-oriented business and restrain and enjoin any person from operating, conducting or maintaining such an establishment contrary to the provisions of this Chapter.

Should any Section, Subsection, clause or provision of this Chapter for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Chapter; it being hereby expressly declared that this Ordinance and each Section, Subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that any one or more Sections, Subsections, sentences, clauses or phrases be declared invalid or unconstitutional. 1 The distance of separation required by Subsection 19.100.070.A(1) shall be made using a straight line, without regard to intervening structures or objects, from the property line of the lot on which the adult-oriented business is located to the nearest property line of the lot upon which is located a residential use, religious institution, park or school from which the measurement is being taken is located. On the same lot as the adult-oriented business, the distance between the two shall be measured in a straight line between the front doors of each use without regard to intervening structures or objects. Furthermore, no sensitive use whose permit to operate is approved after the date the

adult-oriented business application has been submitted shall be considered for purposes of determining whether the Adult-oriented Business Permit shall be issued.

Chapter 19.102 - Animal Keeping