Chapter 5.18
ADULT ENTERTAINMENT BUSINESSES
Sections:
5.18.030 Adult business regulatory permit required.
5.18.040 Investigation and action on application for adult business regulatory permit.
5.18.060 Register and license – Number of employees.
5.18.090 Violations/penalties.
5.18.100 Transfer of adult businesses or adult business regulatory permits.
5.18.110 Suspension or revocation of adult business regulatory permits.
5.18.130 Immunity from prosecution.
5.18.150 Conflicting ordinance.
5.18.170 Expiration of license.
5.18.190 Regulations nonexclusive.
5.18.010 Purpose and intent.
It is the purpose and intent of this chapter to regulate the operations of adult businesses, which tend to have judicially recognized adverse secondary effects on the community, including, but not limited to, increases in crime in the vicinity of adult businesses; decreases in property values in the vicinity of adult businesses; increases in vacancies in residential and commercial areas in the vicinity of adult businesses; interference with residential property owners’ enjoyment of their properties when such properties are located in the vicinity of adult businesses as a result of increases in crime, litter, noise, and vandalism; and deterioration of neighborhoods. Special regulation of these businesses is necessary to prevent these adverse secondary effects and the blighting or degradation of the neighborhoods in the vicinity of adult businesses while at the same time protecting the First Amendment rights of those individuals who desire to own, operate or patronize adult businesses.
It is, therefore, the purpose of this chapter to establish reasonable and uniform operational standards for adult businesses. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.020 Definitions.
In addition to any other definitions contained in the Municipal Code, the following words and phrases shall, for the purpose of this chapter, be defined as follows, unless it is clearly apparent from the context that another meaning is intended. Should any of the definitions be in conflict with any current provisions of the Municipal Code, these definitions shall prevail.
A. “Adult arcade” means a business establishment to which the public is permitted or invited and where coin-, card- or slug-operated or electronically, electrically or mechanically controlled devices, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing “specified sexual activities” or “specified anatomical areas.” Such devices shall be referred to as “adult arcade devices.”
B. “Adult booth/individual viewing area” means a partitioned or partially enclosed portion of an adult business used for any of the following purposes:
1. Where a live or taped performance is presented or viewed, where the performances and/or images displayed or presented are distinguished or characterized by their emphasis on matter depicting, describing, or relating to “specified sexual activities” or “specified anatomical areas”; or
2. Where “adult arcade devices” are located.
C. “Adult business” means an establishment or concern which as a regular and substantial course of conduct performs or operates, for any form of consideration, as an adult arcade, sexual encounter establishment, adult bookstore, adult novelty store, adult tanning salon, massage parlor, adult cabaret, adult video store, adult theater, adult motion picture theatre, adult motel, adult hotel, modeling studio, lingerie modeling, adult escort service agency or any other business or concern which as a regular and substantial portion of its business offers, for any form of consideration, to its patrons products, merchandise, services or entertainment which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified anatomical areas or specified sexual activities, but including those uses or activities the regulation of which is preempted by state law.
D. “Adult business performer” means any person who performs live entertainment for patrons of an adult business, whether or not the performer receives any remuneration, tips, or gratuities of any kind, or pays the operator for permission to perform in the adult business.
E. “Adult cabaret” means an establishment which serves food or beverages and which as a regular and substantial course of conduct features live performances, for any form of consideration, which are characterized by the exposure of specified anatomical areas or by specified sexual activities, or films, motion pictures, video cassettes, slides or other photographic or electronic reproductions which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
F. “Adult escort” means a person who, for any form of consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
G. “Adult hotel/motel” means a hotel or motel or similar establishment offering public accommodations for any form of consideration which:
1. Provides patrons with closed-circuit television transmissions, films, motion pictures, videos, slides, or other photographic or electronic reproductions which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and which advertises the availability of this adult 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. Rents, leases, or lets any single guest room for less than a 10-hour period, or rents, leases or lets any single guest room more than twice in a 24-hour period; or
3. Allows a tenant or occupant to subrent the sleeping room for a time period of less than 10 hours.
H. “Adult motion picture theater” means an establishment which as a regular and substantial course of conduct offers to show, for any form of consideration, films, motion pictures, videos, slides or similar photographic or electronic reproduction, and in which a substantial portion of the total presentation time is devoted to the showing of material which is characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
I. “Adult-oriented material” means accessories, paraphernalia, books, magazines, laser disks, compact discs, digital video disks, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas.” “Adult-oriented material” shall include “sexually oriented merchandise.”
J. “Adult retail store” means a business establishment having as a regular and substantial portion of its stock-in-trade “adult-oriented material.”
K. “Adult tanning salon” means an establishment where patrons receive tanning services in groups of two or more and where patrons or employees of the establishment expose specified anatomical areas. “Adult tanning salon” shall also include a business establishment where a patron and employee of the establishment are nude or expose specified anatomical areas. An “adult tanning salon” shall also include a business establishment where the employees thereof are nude or expose specified anatomical areas.
L. “Adult theater” means an establishment which as a regular and substantial course of conduct features, for any form of consideration, live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
M. “Employee” means any person who works or performs in and/or for a sexually oriented business, regardless of whether or not said person is paid a salary, wages or other compensation by the operator of said business.
N. “Escort agency” means a person or business association who furnishes, or offers to furnish, or advertises to furnish adult escorts as one of its primary business purposes, for a fee, tip, or other consideration.
O. “Establishment of an adult business” includes any of the following:
1. The opening or commencement of any such business as a new business;
2. The conversion of an existing business, whether or not an adult business, to any of the adult businesses defined herein;
3. The addition of any of the adult businesses defined herein to any other existing adult business;
4. The relocation of any adult business; or
5. Physical changes that expand the square footage of an existing adult business by more than 10 percent.
P. “Licensed premises” means any establishment that requires a license and that is classified as an adult business.
Q. “Licensee” means any person who is named on a license to operate an adult business or to do business as an adult business performer, as well as the individuals listed on the application for a license.
R. “Lingerie modeling business” means an establishment where, for any form of consideration, lingerie is modeled by a person or persons for viewing by adults.
S. “Modeling studio” means any establishment which regularly provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who display specified anatomical areas to be observed, sketched, photographed, painted, sculpted, or otherwise depicted by persons paying such consideration. “Modeling studio” does not include schools maintained pursuant to standards set by the State Board of Education. “Modeling studio” does not include schools maintained by an individual artist or group of artists, and which does not provide, permit, or make available specified sexual activities.
T. “Nude,” “nudity,” or “state of nudity” includes the following:
1. The appearance of human buttocks, pubic area, anus, male genitals, female genitals, or the areola and nipple of the female breast; or
2. A state of dress which fails to opaquely and fully cover human buttocks, anus, male or female genitals, pubic region, or areola or nipple of the female breast.
U. “Operator” means any person in charge of any permitted or licensed premises.
V. “Owner/permit holder” means any of the following:
1. The sole proprietor of an adult business;
2. Any general partner of a partnership that owns and operates an adult business;
3. The owner of a controlling interest in a corporation that owns and operates an adult business; or
4. The person designated by the officers of a corporation to be the permit holder for an adult business owned and operated by the corporation.
W. “Person” means an individual, proprietorship, partnership, corporation, association, or other legal entity.
X. “Police department” means the law enforcement agency of the city.
Y. Public Park. A “park or recreation area” means public land which has been designated for park or recreational activities, including, but not limited to, playground, swimming pool, golf course or athletic field within the city which is under the control, operation or management of the city, the county, the state or other public agency.
Z. Regular and Substantial Course of Conduct and/or Regular and Substantial Portion of its Business. Any business shall be considered an adult business where any of the following conditions exist:
1. A regular and substantial portion of the stock-in-trade, or total display area is devoted to adult materials, except for mail-order businesses or wholesale businesses with no patrons on the premises; or
2. The business or concern presents any type of entertainment, live or otherwise, characterized by an emphasis on specified sexual activities or specified anatomical areas on any four or more separate days within any 30-day period; or
3. A regular and substantial portion of the gross receipts of the business are derived from the sale, trade, rental, display, or presentation of services, products, materials, or entertainment which is characterized by an emphasis on specified sexual activity or specified anatomical areas.
AA. “Religious institution” means an establishment which is used primarily for religious services and related religious activities.
BB. “School” means any child care facility, or an institution of learning for minors, whether public or private. This definition includes nursery schools, preschools, schools with any of the grades kindergarten through twelfth grade, or any special institution of education for minors, but it does not include vocational or professional institutions of higher education, including a community or junior college, college, or university.
CC. “Sexual encounter establishment” means an establishment, other than a hotel, motel, or similar establishment, offering public accommodations, which, for any form of consideration as a regular and substantial course of conduct, provides a place where two or more persons may congregate, associate or consort in connection with specified sexual activities or the exposure of specific anatomical areas. This definition does not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in sexual therapy.
DD. “Sexually oriented merchandise” means sexually oriented implements, paraphernalia, or novelty items, such as, but not limited to: dildos, auto-sucks, sexually oriented vibrators, 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 sado-masochistic activities or distinguished or characterized by their emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas.”
EE. “Specified anatomical areas” includes any of the following:
1. Less than completely and opaquely covered, and/or simulated to be reasonably anatomically correct, even if completely and opaquely covered human:
a. Genitals, pubic region;
b. Buttocks, anus; or
c. Female breasts below a point immediately above the top of the areola;
2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
FF. “Specified sexual activities” includes any of the following, irrespective of whether performed directly or indirectly through clothing or other covering:
1. Human genitals in a state of sexual stimulation or arousal; and/or
2. Acts of human masturbation, sexual stimulation or arousal; and/or
3. Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; and/or
4. Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, or bondage and/or restraints; and/or
5. Human excretion, urination, menstruation, vaginal or anal irrigation; and/or
6. Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast.
GG. “Transfer of ownership or control of an adult business” includes any of the following:
1. The sale, lease or sublease of the business;
2. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means;
3. The establishment of a trust, gift, or other similar legal devise which transfers ownership or control of the business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.030 Adult business regulatory permit required.
A. All adult businesses are subject to the adult business regulatory permit requirements of this chapter as well as all other applicable ordinances of the city and laws of the state of California.
B. It shall be unlawful for any person to establish, operate, engage in, conduct, or carry on any adult business within the city of Bell Gardens 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 BGMC 5.18.020 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 this chapter and the underlying zone where the facility is located.
C. The city director of community development or his/her designee shall grant or deny adult business regulatory permits in accordance with these regulations.
D. The city planning commission shall suspend or revoke adult business regulatory permits in accordance with these regulations.
E. Permit applicants shall file a written, signed, and verified application on a form provided by the planning 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, if an individual, or partners, officers, directors, if a partnership or corporation, has not pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex or sex-related offense and (a) more than two years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) more than five years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) more than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period.
5. The permit applicant shall sign the application. All persons who sign the application must also provide names, aliases, addresses, and dates of birth.
6. 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.
7. 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.
8. The address to which notice of action on the application is to be mailed.
9. A sketch or diagram showing the interior configuration of the premises, including a statement of the total floor area occupied by the adult business. The sketch or diagram need not be professionally prepared but must be oriented to the north or some other designated street or object and drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.
10. 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.
F. The completed application shall be accompanied by a nonrefundable application fee. The amount of such fees shall be set by the city council.
G. The completeness of an application for an adult business regulatory permit shall be determined by the director of community development or his/her designee within five working days of its submittal. If the director of community development or his/her designee determines that the permit application is incomplete, the director of community development shall immediately notify in writing the permit applicant of such fact and the reasons therefor, including 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 working days following the receipt of an amended application or supplemental information, the director of community development or his/her designee 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.
H. The fact that a permit applicant possesses other types of state or city permits or licenses does not exempt the permit applicant from the requirement of obtaining an adult business regulatory permit. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.040 Investigation and action on application for adult business regulatory permit.
A. Upon receipt of a completed application and payment of the application and permit fees, the director of community development or his/her designee shall immediately write or stamp the application “Received” and, in conjunction with city 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 city 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 of receipt of the completed application, the investigation shall be completed and the director of community development or his/her designee shall notice and conduct a public hearing with notice of such hearing to be made pursuant to California Government Code Sections 65091 and 65905.
C. In reaching a decision, the director of community development or his/her designee shall not be bound by the formal rules of evidence in the California Evidence Code.
D. The director of community development or his/her designee shall render a written decision on the application for an adult business regulatory permit within two working days of the public hearing required by this section. The failure of the director of community development or his/her designee to render any decision within the time frames established in any part of this section shall be deemed to constitute an approval, subject to appeal to the city council, pursuant to BGMC 5.18.120. The director of community development’s or his/her designee’s decision 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 city of the pending application. Extensions of time sought by applicants shall not be considered delay on the part of the city or constitute failure by the city to provide for prompt decisions on applications.
F. The director of community development or his/her designee shall grant or deny the application in accordance with the provisions of this section, and so notify the applicant as follows:
1. The director of community development or his/her designee shall write or stamp “Granted” or “Denied” on the application and date and sign such notation.
2. If the application is denied, the director of community development or his/her designee shall attach to the application a statement of the reasons for the denial.
3. If the application is granted, the director of community development or his/her designee shall attach to the application an adult business regulatory permit.
G. The director of community development or his/her designee 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 and operational standards and requirements of this chapter, unless the application is denied based upon one or more of the criteria set forth in subsection (I) of this section.
H. If the director of community development or his/her designee grants the application, the applicant may begin operating the adult business for which the permit was sought, subject to strict compliance with the development and operational standards and requirements of this chapter. The permit holder shall post the permit conspicuously in the premises of the adult business.
I. The director of community development or his/her designee shall deny the application if the applicant fails to establish any of the following:
1. The adult business complies with the city’s zoning requirements as to its underlying zoning designation.
2. The adult business complies with the development, operational or performance standards found in this chapter.
3. The permit applicant is at least 18 years of age.
4. The required application fees have been paid.
5. The application complies with BGMC 5.18.030(E).
J. A person 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 director of community development or his/her designee to the planning commission by submitting the appeal in writing to the secretary of the planning commission within five days of the decision. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.050 Operating standards.
A. Maximum Occupancy. Maximum occupancy load, fire exits, aisles and fire equipment for all adult businesses shall be regulated, designed and provided in accordance with the fire department and building regulations and standards adopted by the city of Bell Gardens.
B. Exterior Public View. No adult business shall be operated in any manner that permits the observation of any material or activities depicting, describing or relating to specified sexual activities or specified anatomical areas from any public way or from any location outside the building or area of such establishment. This provision shall apply to any display, decoration, sign, show window, or other opening. No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times.
C. Exterior Illumination. All off-street parking area and premises entries of the adult business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one-and-one-half foot candle of light on the parking surface and/or walkways. The required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the adult business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct. The lighting shall be shown on the required sketch or diagram of the premises. Inoperable or broken lights shall be replaced within 24 hours of occurrence.
D. Noise. The premises within which the adult business is located shall provide sufficient sound-absorbing insulation so that noise generated inside said premises shall not be audible anywhere on any adjacent property or public right-of-way or within any other building or other separate unit within the same building.
E. Hours of Operation. It shall be unlawful for any owner, operator, manager or employee of an adult business to allow such adult business to remain open for business, or to permit any employee or performer to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 12:00 midnight and 8:00 a.m. of any day excepting herefrom an “adult hotel/motel.”
F. Signs. All adult businesses shall comply with the following sign requirements, in addition to those of the Bell Gardens Municipal Code. Should a conflict exist between the requirements of the Bell Gardens Municipal Code and this subsection, the more restrictive shall prevail.
1. If an adult business does not serve alcohol, it shall post a notice inside the establishment, within 10 feet of every entrance used by customers for access to the establishment, stating that persons below the age of 18 years of age are prohibited from entering onto the premises or within the confines of the adult business. This notice shall be posted on a wall in a place of prominence. The dimensions of the notice shall be no less than six inches by six inches, with a minimum typeface of 25 points. If the adult business serves alcohol, it shall comply with all notice and posting requirements of the alcoholic beverage control department.
2. No adult-oriented material shall be displayed in window areas or any area where it would be visible from any location other than within the confines of the adult business.
G. Posted Age Requirement. The building entrance to an adult business shall be clearly and legibly posted with a notice indicating that persons under 18 years of age are precluded from entering the premises. Said notice shall be constructed and posted to the satisfaction of the community development director or designee. No person under the age of 18 years shall be permitted within the premises at any time.
H. Indoor Areas. All indoor areas of the adult business within which patrons are permitted, except rest rooms, shall be open to view by the management at all times.
I. Trash. All interior trash cans shall be emptied into a single locked trash bin lined with a plastic bag at least once a day. The holder of the permit or his/her designee, at least four times a day, shall cause the front and rear exteriors of any adult business to be inspected for trash and debris and any trash and debris found shall be immediately removed and placed into a single locked trash bin lined with a plastic bag.
J. Adult Arcades. Any adult business which is also an “adult arcade” shall comply with the following provisions:
1. Each adult booth/individual viewing area within the adult business shall be visible from a continuous and accessible main aisle in a public portion of the establishment, and shall not be obscured by any door, curtain, wall, two-way mirror or other device which would prohibit a person from seeing the entire interior of the adult booth/individual viewing area from the main aisle. A manager shall be stationed in the main aisle at all times. Further, no one shall maintain any adult booth/individual viewing area in any configuration unless the entire interior wherein the picture or entertainment that is viewed is visible from one main aisle. The entire body of any patron in any adult booth/individual viewing area must be visible from the main aisle without the assistance of mirrors or any other device.
2. No patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted.
3. One security guard shall be stationed in the area where the viewing rooms are located.
4. Security cameras shall be maintained in each area of the interior premises.
5. Viewing rooms or booths shall not share common walls. There shall be a six-inch separation between the viewing room or booth’s walls.
6. No viewing room may be occupied by more than one person at any one time.
7. No beds shall be permitted in an adult booth/individual viewing area.
8. There shall be no doors, curtains, or any other type of barriers or enclosing to the viewing entrance of the viewing rooms or booths. No partially or fully enclosed adult booth/individual viewing areas or partially or fully concealed adult booth/individual viewing areas shall be maintained.
9. The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes or transparent material between any two such rooms such as would allow viewing from one booth into another or such as to allow physical contact of any kind between the occupants of any two such booths or rooms. If any holes in the walls of a viewing room or booth are discovered, they must be repaired within 24 hours using “pop” rivets to secure metal plates over the holes or openings to prevent patrons from removing the metal plates.
10. Customers, patrons, or visitors shall not be allowed to stand idly by or loiter in the vicinity of any such video booths, or to remain in the common area of such business, other than the rest rooms, who are not actively engaged in shopping for or viewing the products available on display for purchaser viewing. Signs prohibiting loitering shall be posted in prominent places in and near the video booths.
11. The floors, seats, walls and other interior portions of all viewing rooms or booths shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen or saliva in any such rooms or booths shall be evidence of improper maintenance and inadequate sanitary controls; repeated instances of such conditions may justify suspension or revocation of the adult business permit.
K. Interior Illumination. All interior areas of the adult business excepting therefrom adult hotels/motels shall be illuminated at a minimum of one foot candle, maintained and evenly distributed at floor level. Inoperable and/or broken lights shall be replaced within 24 hours of occurrence, excepting herefrom an “adult hotel/motel.”
L. Rest Room Facilities. The adult business shall provide and maintain separate rest room facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the rest room(s) for females, and female patrons and employees shall be prohibited from using the rest room(s) for males or male patrons, except to carry out duties of repair, maintenance and cleaning of the rest room facilities. The rest rooms shall be free from any adult material. Rest rooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph shall not apply to an adult business which deals exclusively with the sale or rental of adult material which is not used or consumed on the premises, such as an adult bookstore or adult video store, and which does not provide rest room facilities to its patrons or the general public. Rest room facilities shall be designed for single occupancy.
M. On-Site Manager – Security Measures.
1. All adult businesses shall have a responsible person who shall be at least 18 years of age and shall be on the premises to act as manager at all times during which the business is open. No performer may serve as the manager. The individual(s) designated as the on-site manager shall provide his/her name to the director of community development or his/her designee to receive all complaints and be given by the owner and/or operator the responsibility and duty to address and immediately resolve all violations taking place on the premises.
2. All adult businesses shall provide a security system that visually records and monitors all parking lot areas, or in the alternative, state-licensed, uniformed security guards to patrol and monitor the parking lot areas at all times during which the business is open. No performer may serve as a security guard. A sign indicating compliance with this provision shall be posted on the exterior of the premises in a visible location. The sign shall not exceed two feet by three feet and shall at a minimum be one foot by one and one-half feet and shall utilize red or black printing of letters not less than one inch in size with a contrasting background.
N. Live Entertainment. The following additional requirements shall pertain to adult businesses providing live entertainment depicting specified anatomical areas or involving specified sexual activities.
1. No person shall perform live entertainment for patrons of an adult business, except upon a stage at least 18 inches above the level of the floor which is separated by a distance of at least 10 feet from the nearest area occupied by patrons, and no patron shall be permitted within 10 feet of the stage while the stage is occupied by an adult business performer as defined herein.
2. The adult business shall provide dressing rooms for performers, separated by gender and exclusively dedicated to the performers’ use and which the performers shall use. Same-gender performers may share a dressing room. Patrons shall not be permitted in dressing rooms.
3. The adult business shall provide an entrance/exit for performers, which is separate from the entrance/exit used by patrons, and which the performers shall use at all times.
4. The adult business shall provide access for performers between the stage and the dressing rooms that is completely separated from the patrons. If such separate access is not physically feasible, the adult business shall provide a minimum three-foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers capable of (and which actually results in) preventing any physical contact between patrons and performers and the patrons must also be seven feet away from the walk aisle. Nothing in this section is intended to exempt the adult business from compliance with the provisions of Title 24 of the California Code of Regulations pertaining to handicapped accessibility.
5. No performer shall have physical contact with any patron, and no patron shall have physical contact with any performer, while the performer is performing on the premises. In addition, while on the premises, no performer shall have physical contact with a patron and no patron shall have physical contact with a performer, which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the buttocks, perineum, anal region, or female breast with any part or area of any other person’s body either before or after any adult live entertainment by such performer. This prohibition does not extend to incidental touching. Patrons shall be advised of the separation and no-touching requirements by signs conspicuously displayed and placed on the barrier between patrons and performers and utilizing red or black printing of letters not less than one inch in size. And, if necessary, patrons shall also be advised of the separation and no-touching requirements by employees or independent contractors of the establishment.
6. Fixed rail(s) at least 30 inches in height shall be maintained establishing the separations between performers and patrons required by this subsection.
7. If patrons wish to pay or tip performers, payment or tips shall be placed in containers placed at least 10 feet from the stage or other area used by the performers. Patrons shall not throw money to performers, hand money directly to performers, place monies in the performers’ costumes or otherwise place or throw monies on the stage. Patrons shall be advised of this requirement by signs conspicuously displayed and placed on the barrier between patrons and performers and utilizing red or black printing of letters not less than one inch in size with a contrasting background.
8. All employees, except therefrom performers while performing on the fixed stage, while on or about the premises, shall wear at a minimum an opaque covering which covers their specified anatomical areas. Performers performing on the fixed stage must wear at all times while performing at least a fully opaque covering of their genitals (i.e., a “g-string”).
9. No owner or other person with managerial control over an adult business (as that term is defined herein) 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 coverage, and/or the female breast with less than a full opaque coverage 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 specified anatomical part required to be covered.
O. Security. The following requirements shall pertain to the adult business concerning security.
1. Adult businesses shall employ security guards in order to maintain the public peace and safety, based upon the following standards:
a. Adult businesses featuring live entertainment shall provide at least one security guard at all times while the business is open. If the occupancy limit of the premises is greater than 35 persons, an additional security guard shall be on duty.
b. Additional security guards for other adult businesses may be required if it is determined by the police chief that their presence is necessary in order to prevent any unlawful conduct from occurring on the premises.
c. Security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. The police department shall approve the security agency/company providing security services at the adult establishment. Security guards shall be uniformed in such a manner so as to be readily identifiable as security guards by the public and shall be duly licensed as security guards as required by applicable provisions of state law. No security guard required pursuant to this subsection shall act as a door person, ticket seller, ticket taker, admittance person, or sole occupant of the manager’s station while acting as a security guard.
2. Security cameras shall be maintained in each area of the interior premises.
P. Signage. A sign shall be posted at all entrances to the building or lobby areas, advising patrons that the adult establishment is patrolled by the city of Bell Gardens police department. The content, size, and location of the sign shall be subject to approval by the Bell Gardens chief of police.
Q. Adult Motion Picture Theater – Additional Operating Requirements. The following additional requirements shall apply to adult motion picture theaters:
1. If the theater contains a hall or auditorium area, the area shall comply with each of the following provisions:
a. Have individual, separate seats, not couches, benches, or the like, to accommodate the maximum number of persons who may occupy the hail or auditorium area;
b. Have a continuous main aisle alongside the seating areas in order that each person seated in the hall or auditorium area shall be visible from the aisle at all times;
c. Have a sign posted in a conspicuous place at or near each entrance to the hall or auditorium area which lists the maximum number of persons who may occupy the hall or auditorium area, which number shall not exceed the number of seats within the hall or auditorium area; and
2. If an adult motion picture theater is designed to permit outdoor viewing by patrons seated in automobiles, it shall have the motion picture screen so situated, or the perimeter of the establishment so fenced, that the material to be seen by those patrons may not be seen from any public right-of-way, child day care facility, public park, school, or religious institution or any residentially zoned property occupied with a residence. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.060 Register and license – Number of employees.
Every licensee of an adult business that provides live entertainment depicting specified anatomical areas or involving specified sexual activities must maintain a register of all persons so performing on the premises and their license numbers. Such register shall be available for inspection during regular business hours by any police officer or health officer of the city of Bell Gardens. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.070 Display of license.
Every adult business shall display at all times during business hours the license issued pursuant to the provisions of this chapter for such adult business in a conspicuous place so that the same may be readily seen by all persons entering the adult business. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.080 Employment of and services rendered to persons under the age of 18 years prohibited – Twenty-one if alcohol is served.
A. Employees. Employees of an adult business must be at least 18 years of age. It shall be unlawful for any owner, operator, manager, partner, director, officer, shareholder with a 10 percent or greater interest, employee, or other person in charge of any adult business to employ, contract with, or otherwise retain any services in connection with the adult business with or from any person who is not at least 18 years of age. If liquor is served at the adult business, employees of the adult business must be at least 21 years of age. If liquor is served at the adult business, it shall be unlawful for any owner, operator, manager, partner, director, officer, shareholder with a 10 percent or greater interest, employee, or other person in charge of any adult business to employ, contract with, or otherwise retain any services in connection with the adult business with or from any person who is not 21 years of age. Said persons shall exercise reasonable care in ascertaining the true age of persons seeking to contract with, be employed by, or otherwise service the adult business.
B. Patrons. Patrons of an adult business must be at least 18 years of age. It shall be unlawful for any owner, operator, manager, partner, director, officer, shareholder with a 10 percent or greater interest, employee, or other person in charge of any adult business to permit to enter or remain within the adult business any person who is not at least 18 years of age. If alcohol is served at the adult business, patrons must be at least 21 years of age. If alcohol is served at the adult business, it shall be unlawful for any owner, operator, manager, partner, director, officer, shareholder with a 10 percent or greater interest, employee, or other person in charge of any adult business to permit to enter or remain within the adult business any person who is not at least 21 years of age. Said persons shall exercise reasonable care in ascertaining the true age of persons entering the adult business.
C. X-Rated Movies. The selling, renting and/or displaying of X-rated movies, videotapes, digital video disks (DVDs), compact disks (CDs) and laser disks shall be restricted to persons over 18 years of age. If an establishment that is not otherwise prohibited from providing access to the establishment to persons under 18 years of age sells, rents, or displays movies, videos, DVDs, or laser disks that have been rated “X” or rated “NC-17” by the motion picture rating industry (“MPAA”), or which have not been submitted to the MPAA for a rating, and which consist of images that are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas, said movies, videos, DVDs, CDs, and laser disks shall be located in a specific section of the establishment from which persons under the age of 18 shall be prohibited. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.090 Violations/penalties.
A. Any owner, operator, manager, employee or independent contractor of an adult business violating or permitting, counseling, or assisting the violation of any of these 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 subsection (A) of this section, any adult business that is operating in violation of these 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 permitting process, and do not constitute a criminal offense. Notwithstanding any other provision of the Bell Gardens Municipal Code, the city does not impose a criminal penalty for violations of the provisions of this chapter and Chapter 5.19 BGMC related to sexual conduct or activities. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.100 Transfer of adult businesses or adult business regulatory permits.
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 or the adult business regulatory permit, the new owner shall be fully informed of the requirements of this chapter, including the operational and development standards herein.
C. In the event of a transfer of the adult business or the adult business regulatory permit, the transferee must provide the director of community development or his/her designee 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, 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. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.110 Suspension or revocation of adult business regulatory permits.
A. On determining that grounds for permit suspension or revocation exist, the director of community development or his/her designee shall furnish written notice of the proposed suspension or revocation to the permit holder. Such notice shall set forth the time and place of a public hearing and the ground or grounds upon which the hearing is based, the pertinent Bell Gardens Municipal 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 permit holder, or shall be delivered to the permit holder personally, at least 10 days prior to the hearing date. Public hearings pursuant to this section shall be noticed in accordance with Government Code Sections 65091 and 65905 and conducted by the planning commission or its designee, including a third-party hearing officer. Public 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 permit holder. Extensions of time or continuances sought by a permit holder shall not be considered delay on the part of the city or constitute failure by the city to provide for prompt decisions on permit suspensions or revocations.
4. The planning commission’s decision may be appealed in accordance with BGMC 5.18.120.
B. A permit may be suspended or revoked based on the following causes arising from the acts or omissions of the permit holder, or an employee, independent contractor, partner, director, or manager of the permit holder:
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 development and operational standards contained in BGMC 5.18.050, and all other applicable building, fire, electrical, plumbing, health, and zoning requirements of the Bell Gardens Municipal Code.
2. The permit holder has failed to obtain or maintain all required city permits.
3. The permit holder 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 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 licensed premises within a 12-month period and was an employee of the adult business at the time the offenses were committed.
6. That the use for which the approval was granted has ceased to exist or has been suspended 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 permit holder, partner, director, or manager has knowingly allowed or permitted, and 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 Section 290 of the California Penal Code;
d. The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Section 315, 316 or 318 of the California Penal Code;
e. Any act constituting a violation of provisions in the California Penal Code relating to obscene matter or distribution of harmful matter to minors, including, but not limited to, Sections 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 Section 11054, 11055, 11056, 11057 or 11058 of the California Health and Safety Code;
g. An act or omission in violation of any of the requirements of this division 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 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.
D. The planning commission shall render a written decision that shall be hand-delivered or overnight-mailed to the permit holder within five days of the public hearing.
E. Any affected person may appeal the decision of the planning commission in writing within five days in accordance with the provisions of BGMC 5.18.120.
F. 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 within 12 months after the date of such revocation. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.120 Appeal procedures.
A. After approval, denial, suspension or revocation of a permit, any affected person may appeal the decision to the city council in writing within five days after the written decision.
B. Consideration of an appeal of the decision shall be at a public hearing, notice of which shall be given pursuant to California Government Code Sections 65091 and 65905 and which hearing shall occur within 30 days of the filing or initiation of the appeal.
C. The city council action on the appeal of the decision shall be by a majority vote of the members present and upon the conclusion of the de novo public hearing, the city council shall grant or deny the appeal. The city council’s decision shall be final and conclusive and shall be rendered in writing within four working days of the hearing, such written decision to be immediately mailed to the party appealing the planning commission’s decision.
D. In reaching its decision, the city council 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 division or may request a continuance regarding any decision or consideration by the city of the pending appeal. Extensions of time sought by applicants shall not be considered delay on the part of the city or constitute failure by the city to provide for prompt decisions on applications.
F. Failure of the city council 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 city council is governed by California Code of Civil Procedure Section 1094.8.
H. Notice of the city council’s decision and its findings shall include citation to California Code of Civil Procedure Section 1094.8.
I. Any applicant or permit holder whose permit has been denied, suspended, or revoked pursuant to this section shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure Section 1094.8. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.130 Immunity from prosecution.
The city and its designee, the police department and all other departments and agencies and all other city officers, agents and employees, charged with enforcement of state and local laws and codes shall be immune from prosecution, civil, or criminal, for reasonable, good-faith trespass upon an adult business while acting within the scope of authority conferred by this chapter. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.140 Public nuisance.
In addition to the penalties set forth in this chapter, any adult business that is operating in violation of these provisions regulating adult businesses is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.150 Conflicting ordinance.
If any city ordinance or regulation or any part thereof is found in conflict with the provisions of this chapter, the provisions of this chapter shall apply. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.160 Inspection.
An applicant or licensee shall permit representatives of the police department, health department, fire department, code enforcement, city manager, or other city departments or agencies to inspect the premises of an adult business, on an unscheduled basis, for the purpose of assuring compliance with the law, at any time it is occupied or opened for business. A person who operates an adult business or his or her agent or employee is in violation of the provisions of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or opened for business. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.170 Expiration of license.
A. Each license shall expire one year from the date of issuance and may be renewed only by making an application as provided in this chapter. Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license will not be affected.
B. When the city’s business license division denies renewal of the license, the applicant shall not be issued a license under this chapter for one year from the date of denial. If, subsequent to denial, the city or its designee, finds that the basis for denial of the renewal of the license has been corrected, the applicant shall be granted a license if at least 90 days have elapsed since the date denial became final. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.180 Business records.
If the director of community development believes that a regular and substantial portion of a business operating within the city meets the definition of an adult business, as expressed in this chapter, the director of community development may require that the business make available for review by the authorized representative of the city, at reasonable times and places, complete records of the businesses’ transactions, including its sales, receipts, purchases and other expenditures. In the event such records cannot be made available within the city of Bell Gardens or within a distance of 50 miles therefrom, the operator of the business is hereby required to reimburse the city for the cost of all transportation, lodging, meals, portal-to-portal travel, time and other incidental costs reasonably incurred by the city in performing said audit. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.190 Regulations nonexclusive.
The provisions of this chapter regulating adult businesses are not intended to be exclusive, and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the city council of the city of Bell Gardens. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).
5.18.200 Severability.
If any section, subsection, paragraph, sentence, clause or phrase of this chapter and the ordinance to which it is a part or any part thereof is held for any reason to be unconstitutional, invalid, or ineffective by any court of competent jurisdiction, the remaining sections, subsections, paragraphs, sentences, clauses, and phrases shall not be affected thereby. The city council hereby declares that it would have adopted this chapter and the ordinance to which it is a part regardless of the fact that one or more sections, subsections, paragraphs, sentences, clauses, or phrases may be determined to be unconstitutional, invalid or ineffective. (Ord. 796 § 2, 2006; Ord. 797-U § 2, 2006).