HomeMy WebLinkAboutMC-1129
Adopted: August 19, 2002
Effective: September 19, 2002
1 ORDINANCE NO. MC-1l29
2 ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CERTAIN
SECTIONS OF CHAPTER 5.14 OF THE SAN BERNARDINO MUNICIPAL CODE
3 RELATING TO ENTERTAINMENT-DANCES AND ADULT ENTERTAINMENT.
4 The Mayor and Common Council of the City of San Bernardino do ordain as
follows:
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6 SECTION 1. FINDINGS. The Common Council of the City of San Bernardino
hereby finds that:
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(a) The Common Council, in adopting this ordinance, takes legislative notice
8 of the existence and content of the following studies concerning the adverse secondary side
effects of Adult Businesses in other cities: Garden Grove, California (1991); Indianapolis,
9 Indiana (1984); Los Angeles, California (1977); Dallas, Texas (1977); Austin, Texas (1986);
Phoenix, Arizona (1979); Houston, Texas (1983/1997); Saint Paul, Minnesota (1983). The
10 Common Council finds that these studies are relevant to the problems addressed by the City
in enacting Chapter 5.14 and these amendments to Chapter 5.14, to regulate the adverse
11 secondary side effects of Adult Businesses (as that term is defined in Chapter 19.06 of this
Code), and more specifically finds that these studies provide convincing evidence that:
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("i) Adult Businesses are linked to increases in the crime rates in those
13 areas in which they are located and in surrounding areas.
14 (2) There is substantial evidence that an increase in crime tends to
accompany, concentrate around, and be aggravated by Adult Businesses, including but not
15 limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering,
and violence against persons and property. The studies from other cities establish
16 convincing evidence that Adult Businesses which are not regulated as to operation often
have a deleterious effect on nearby businesses in residential areas causing, among other
17 adverse secondary effects, an increase in crime and a decrease in property values.
18 (b) Based on the foregoing, the Common Council of the City of San Bernardino
finds and determines that special regulation of Adult Businesses is necessary to ensure that
19 their adverse secondary side effects will not contribute to an increase in crime rates or to the
blighting or deterioration of the areas in which they are located or surrounding areas. The
20 need for such special regulations is based upon the recognition that Adult Businesses have
serious objectionable operational characteristics, particulary when several of them are
21 concentrated under certain circumstances or located in direct proximity to sensitive uses
such as parks, schools, churches, thereby having a deleterious effect upon the adjacent
22 areas. It is the purpose and intent of these special regulations to prevent such adverse
secondary side effects.
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(c) The Common Council, in adopting operational standards, recognizes that
24 these standards do not preclude reasonable alternative avenues of communication. The
Common Council takes note of the proliferation of adult material on the Internet and its
25 availability as an alternative avenue of communication. The Common Council also considers
and relies on published decisions examining the proliferation of communications on the
26 Internet. Reno v. American Civil Liberties Union (1997) 521 U.S. 844 (the principle channel
through which many Americans now transmit and receive sexually explicit communication
27 is the Internet); see also: Anheuser-Busch v. Schmoke, 101 F.3d 325, 329 (4th Cir. 1996)
(rejecting First Amendment challenge to Baltimore ordinance restricting alcohol
28 advertisements on billboards and acknowledging that the Internet is an available channel of
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1 communication); U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); and U.S. v. Thomas, 74
F.3d 701 (6th Cir. 1996) (cert denied 519 U.S. 820). The emergence of the Internet provides
2 a virtually unlimited additional source of adult oriented sexual material available to persons
without regard to geographic boundaries. An adult business no longer needs to be actually
3 physically located within a city to be available to the community.
4 (d) In developing this ordinance, the Common Council has been mindful of legal
principles relating to regulation of Adult Businesses and does not intend to suppress or
5 infringe upon any expressive activities protected by the First Amendments of the United
States and California Constitutions, but instead desires to enact reasonable time, place, and
6 manner regulations that address the adverse secondary effects of Adult Businesses. The
Common Council has considered decisions of the United States Supreme Court regarding
7 local regulation of Adult Businesses, including but not limited to: Young v. American Mini
Theaters. Inc., 427 U.S. 50 (1976) (Reh. denied 429 U.S. 873); Renton v. Plavtime
8 Theaters, 475 U.S. 41 (1986) (Reh. denied 475 U.S. 1132); FW/PBS. Inc. v. Dallas, 493
U.S. 215 (1990); Barnes v. Glenn Theater, 501 U.S. 560 (1991), and City of Erie v. Paps
9 A.M. 529 U.S. 277 (2000); United States Court of Appeals 9th Circuit decisions, including
but not limited to: Topanga Press. et al. v. Citv of Los Angeles, 989 F.2d 1524 (1993); Kev.
10 Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d
545 (9th Cir. 1998); several California cases including but not limited to: THy B. v. City of
11 Newport Beach, 69 Cal.App.4th 1 (1998); City of National City v. Wiener, 3 Cal.4th 832
(1993); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); and City ofValleio v. Adult
12 Books. et al. 167 Cal.App.3d 1169 (1985); and other federal cases including Lakeland
Lounae v. City oLJ.acksonville 973 F.2d 1255 (5th Cir. 1992); Hang On Inc. v. Arlington 65
13 F.3d 1248 (5th Cir. 1995); Mitchell v. Commission on Adult Entertainment 10 F.3d 123 (3rd
Cir. 1993); International Eateries v. Broward County 941 F.2d 1157 (11th Cir. 1991); and
14 Star Satelitte v. Citv of Biloxi 779 F.2d 1074 (5th Cir. 1986).
15 (e) The Common Council of the City of San Bernardino also finds that locational
criteria alone does not adequately protect the health. safety, and general welfare of the
16 citizens of the City of San Bernardino, and thus certain requirements with respect to the
ownership and operation of Adult Businesses are in the public interest. In addition to the
17 findings and studies conducted in other cities regarding increases in crime rates, decreases
in property values and the blighting of areas in which such businesses are located, the
18 Common Council also takes legislative notice of the facts recited in the case of Kev. Inc. v.
Kitsap Countv, 793 F.2d 1053 (1986), regarding how live adult entertainment results in
19 secondary effects such as prostitution, drug dealing, and other law enforcement problems.
20 (f) The Common Council finds the following, in part based upon its
understanding of the documents, testimony and judicial decisions in the public records:
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(1) Evidence indicates that some dancers, models and entertainers, and
22 other persons who publicly perform specified sexual activities or publicly display specified
anatomical parts in Adult Businesses (collectively referred to as 'performers') have been
23 found to engage in sexual activities with patrons of Adult Businesses on the site of the Adult
Business;
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(2) Evidence has demonstrated that performers employed by Adult
Businesses have been found to offer and provide private shows to patrons who,
for a price, are permitted to observe and participate with the performers in live sex
shows;
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(3) Evidence indicates that performers at Adult Businesses have been
found to engage in acts of prostitution with patrons of the establishment;
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(4) Evidence demonstrates that performers employed by Adult
Businesses frequently use stage names and other aliases, making it difficult for law
enforcement personnel to properly identify them or ascertain their true identies;
(5) Evidence indicates that fully enclosed booths, individual viewing
areas, and other small rooms whose interiors cannot be seen from public areas of
the establishment regularly have been found to be used as a location for engaging
in unlawful sexual activity;
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(6) As a result of the above, and the increase in incidents of AIDS and
Hepatitis B, which are both sexually transmitted diseases, the City has a
substantial interest in adopting regulations which will reduce, to the greatest extent
possible, the possibility for the occurrence of prostitution and casual sex acts at
Adult Businesses.
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(g) Zoning, licensing and other police power regulations are legitimate,
9 reasonable means of accountibility to help protect the quality of life in the community of San
Bernardino and to help assure that all operators of Adult Businesses comply with reasonable
10 regulations and are located in places that minimize the adverse secondary effects which
naturally accompany the operation of such businesses.
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(h) The Common Council has also determined that a closing hours requirement
12 promotes the reduction of deleterious secondary effects from Adult Businesses and
reasonably relies an prior court decisions on the need for closing hours including Mitchell v.
13 Comm. on Adult E;,tertainment, 10 F .3d 123, 131-139 (3d Cir. 1993); Lady J. Lingerie, Inc.
v. City of Jacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997) and Lady J. Lingerie, Inc. v. City
14 of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); and City of Colorado Springs v. 2354 Inc.,
896 P.2d 272 (1995).
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(i) The Common Council of the City of San Bernardino recognizes the possible
16 harmful effects on children and minors exposed to the effects of such Adult Businesses and
the deterioration of respect for family values, and the need and desire of children and minors
17 to stay away from and avoid such businesses, which causes children to be fearful and
cautious when walking through or visiting the immediate neighborhood of such businesses;
18 and the Common Council desires to minimize and control the adverse secondary side effects
associated with the operation of Adult Businesses and thereby protect the health, safety, and
19 welfare of the citizens of San Bernardino; protect the cititzens from increased crime;
preserve the quality of life; preserve property values and the character of surrounding
20 neighborhoods and businesses; deter the spread of urban blight and protect against the
threat to health from the spread of communicable and sexually transmitted diseases.
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Ul It is not the intent of the Common Council of the City of San Bernardino in
22 enacting this ordinance, or any provision thereof, to condone or legitimize the distribution of
obscene material, and the City of San Bernardino recognizes that state law prohibits the
23 distribution of obscene materials and expects and encourages law enforcement officials to
enforce state obscenity statutes against such illegal activities in the City of San Bernardino.
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(k) Nothing in this ordinance is intended to authorize, legalize, or permit the
25 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,
26 unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter or the
exhibition or public display thereof.
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(I) In prohibiting public nudity in Adult Businesses, the Common Council does
28 not intend to proscribe the communication of erotic messages or any other communicative
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1 element or activity, but rather only to prevent or reduce the secondary impacts associated
with such public nudity; and
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(m) While the Common Council desires to protect the rights conferred by the
3 United States Constitution to Adult Businesses, it does so in a manner that ensures the
continued and orderly development of property within the City and diminishes, to the greatest
4 extent feasible, those undesirable secondary effects which the aforementioned studies have
shown to be associated with the development and operation of Adult Businesses; and
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(n) The City declares that the restrictions on sexual conduct or activities
6 imposed pursuant to this ordinance are part of a regulatory licensing process, and do not
constitute a criminal offense. Notwithstanding any other provision of the San Bernardino
7 Municipal Code, the City does not impose a criminal penalty for violations of the provisions
of this ordinance related to sexual conduct or activities. The Common Council adopts these
8 limitations only as a condition of issuance and maintenance of an Adult Business
entertainment license issued pursuant to the Municipal Code; and
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(0) The Common Council finds that preventing the direct exchange of money
10 between entertainers and patrons also reduces the likelihood of drug and sex transactions
occurring in Adult Businesses; and
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(p) Requiring separations between entertainers and patrons reduces the
12 likelihood that such persons will negotiate narcotics sales and/or transact sexual favors
within the Adult Business; and
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(q) Enclosed or concealed booths and dimly-lit areas within Adult Businesses
14 greatly increases the potential for misuse of the premises, including unlawful conduct of a
type which facilitates transmission of disease. Requirements that all indoor areas be open
15 to view by management at all times, and that adequate lighting be provided are necessary
in order to reduce the opportunity for, and therefore the incidence of illegal conduct within
16 Adult Businesses, and to facilitate the inspection of the interior of the premises thereof by
law enforcement personnel.
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(r) The Common Council finds that security guard requirements, based upon
18 the number of occupants on the premises where entertainment is performed, promotes the
reduction of adverse secondary effects from Adult Businesses, promotes public safety, and
19 reduces the likelihood of illegal conduct occuring inside and outside the premises.
20 (s) Based upon (a)-(r) above, and in particular the studies set forth in (a), after
review of Chapter 5.14, the Common Council finds that only the following sections in Chapter
21 5.14 need to be amended as all other sections are in conformity with said studies and
findings.
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Section 2. San Bernardino Municipal Code Section 5.14.01 0(C)(3) is amended
23 to read as follows:
24 "5.14.010
Definitions
25 C.
3.
The following is included in the term "entertainment"; The presence of any
performer, dancer, employee, agent, model or other person, collectively
andlor individually referred to as "entertainer", in any place of entertainment
as defined in Sections 5.14.010(A) or (B) who engages in any specified
sexual activity (as that term is defined in Chapter 19.06 of this Code) not
otherwise prohibited by local, State or Federal law, or who exposes any
specified anatomical part (as that term is defined in Chapter 19.06 of this
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Code) not otherwise prohibited by local, State or Federal law, or who
performs in attire commonly referred to as pasties or a G-string, or any
other opaque covering which does not expose the areola or nipples of the
female breast, and while covering the natal cleft and pubic area covers less
than one inch on either side of the entire length of the natal cleft and two
inches across the pubic area. Entertainment as described in this
subsection shall be subject to all regulations as described in Chapter 19.06
of this Code, including but not limited to, the requirement for a Development
Permit II."
6 Section 3. San Bernardino Municipal Code Section 5.14.050 is amended to read
as follows:
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"5.14.050
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Issue of License-Investigation
Upon receipt of an application for an entertainment license, the City Clerk shall
conduct an investigation to determine if the proposed business is in compliance
with the provisions of this chapter. The investigation shall include immediately
forwarding copies of the application to the Police Department, Development
Services and the Fire Department for their own independent investigation. Each
department shall make recommendations as to the issuance or denial of the
license and forward said results to the City Clerk within 20 days of receipt of the
application. The City Clerk, shall, within 30 days of receipt of a complete license
application, approve and issue the license if all the requirements of this section
have been met. If the City Clerk determines that the application does not satisfy the
requirements of this chapter, helshe shall deny the application. If no determination
is made. by the City Clerk within 30 days of receipt of a complete license
application, then the applicant may commence operations under a temporary
license, subject to strict compliance with this Chapter, until the City Clerk's
determination.
1. The applicant shall be served with written notice of the decision. Notice
shall be personally served or served by deposit in the United States mail,
first class postage prepaid, at the address shown on the application.
Service shall be deemed complete upon personal service or deposit in the
United States Post Mail.
Standards for Approval of License. The City Clerk shall approve and issue an
entertainment license if the application and evidence submitted show that
1. The operation, as proposed by the applicant, if permitted, would comply
with all applicable laws, including but not limited to the City's building, fire,
zoning and health regulations; and
23 2. The applicant has not knowingly made any false, misleading or fraudulent
statement of fact in the license application process, or on any document
24 required by the City in conjunction therewith; the applicant's age is eighteen
(18) years or more; and the applicant has paid the required application
25 fees."
(MC-1100, 7-23-01)
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Section 4.
27 as follows:
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San Bernardino Municipal Code Section 5.14.060 is amended to read
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1 "5.14.060
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Operational Standards
2 The following operational standards shall apply to all entertainment described in
Section 5.14.010:
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A.
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No operator, entertainer or employee of a place of entertainment shall permit to be
performed, offer to perform, perform or allow patrons to perform sexual
intercourse, oral or anal copulation, lap or straddle dancing, fondling or stimulation
of human genitals, pubic region, buttocks, or female breasts.
No operator, entertainer or employee of a place of entertainment shall encourage
or permit any person upon the premises to lap or straddle dance, touch, caress,
or fondle the breasts, buttocks, anus or genitals of any other person.
If the place of entertainment is licensed to serve alcoholic beverages, the licensee
shall abide by the rules and regulations set forth by the California Department of
Alcoholic Beverage Control.
No person shall perform for patrons any entertainment described in Section
5.14.010(C)(3) except upon a stage at least eighteen (18) inches above the level
of the floor which is separated by a distance of at least six feet from the nearest
area occupied by patrons, and no patron shall be permitted within six feet of the
stage while the stage is occupied by an entertainer. This subsection shall not
apply to individual viewing areas where the stage is completely separated from the
viewing area, floor to ceiling, by plexiglass or other clear permanent barrier.
Stage or entertainment areas shall not be open to view from outside the premises.
Permanent barriers shall be installed and maintained to screen the interior of the
premises from public view for each door used as an entrancelexit to the business.
No exterior door or window shall be propped or kept open at any time during hours
of operation; any exterior windows shall be covered with opaque covering at all
times.
No person under the age of eighteen (18) years shall be permitted within the
premises at any time during hours of operation.
The place of entertainment shall maintain separate restroom facilities for male
patrons and employees and female patrons and employees. Male patrons and
employees shall be prohibited from either looking into or using the restrooms for
females and female patrons and employees shall be prohibited from using the
restrooms for males except to carry out the duties of repair, maintenance and
cleaning of the restroom facilities. Restrooms shall not contain television monitors
or other motion picture or video projection recording or reproduction equipment.
The premises shall provide separate dressing room facilities for male and female
entertainers which are exclusively dedicated to the entertainer's use.
The licensee shall provide an entrance/exit to the premises for entertainers which
is separate from the entrance/exit used by patrons.
No entertainer shall have physical contact with any patron and no patron shall have
physical contact with any entertainer while on the premises.
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All areas of the place of entertainment accessible to patrons shall be illuminated
at least to the extent of two foot-candles (measured as units of illuminance),
minimally maintained and evenly distributed at ground level.
Individual viewing areas shall be operated and maintained without any hole or
other opening or means of direct communication or visual or physical access
between the interior space of two or more individual viewing areas.
No individual viewing area may be occupied by more than one person at anyone
time.
All individual viewing areas shall be physically arranged in such a manner that the
entire interior portion of the individual viewing area is directly visible from aisles
and public areas of the premises. Visibility into the individual viewing rooms shall
not be blocked or obscured by doors, curtains, partitions, drapes, or any other
obstruction whatsoever.
No patron, guest or invitee shall directly payor give any gratuity to any performer,
dancer, employee or model and no dancer, performer, employee or model shall
solicit any payor gratuity from any patron.
No owner or other person with managerial control over an Adult Business (as that
term is defined in Chapter 19.06 of this Code) shall permit any person on the
premises of the Adult Business to engage in a live showing of the human male or
female genitals, pubic area, or buttocks with less than a fully opaque covering,
andlor the female breasts with less than a fully opaque covering over any part of
the nipple or areola and/or covered male genitals in a discernibly turgid state. This
provision may not be complied with by applying an opaque covering simulating the
appearance of the specific anatomical part required to be covered.
If the occ.upancy limit of that portion of the premises where entertainment is
performed is greater than two hundred (200) persons, at least one security guard
will be on duty outside the premises, patrolling the grounds and parking areas at
all times while the entertainment is provided. An additional security guard will be
on duty inside the premises if the occupancy exceeds four hundred (400) persons.
The security guards shall be charged with preventing violations of law and
enforcing compliance by patrons with the requirements of the chapter. No security
guard required pursuant to this subparagraph shall act as a door person, ticket
seller, ticket taker, or admittance person while acting as a security guard. An
additional security guard shall be provided if one security guard is to be utilized for
the purpose of conducting searches on patrons. All security guards shall be
licensed in accordance with Business and Professions Code ~7582, et seq.
The premises within which the entertainment is located shall provide sufficient
sound absorbing insulation so that noise generated inside the premises shall not
be audible anywhere on adjacent property or public right-of-way or within any other
building or other separate unit within the same building;
All signage conforms to the standards applicable in Title 19 of this Code;
Every place of entertainment shall have a manager on the premises at all times
when entertainment is performed;
The place of entertainment must not operate or be open between the hours of two
a.m. and eight a.m., however, the restriction herein imposed applies only to
permitting or allowing the public to dance and to the providing of entertainment of
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any sort other than mechanical music between such hours and is not deemed to
prevent or make unlawful the serving of meals or refreshments between such
hours; and
All business activities must take place within the enclosed structures, unless
otherwise permitted by the City.
The City Clerk shall impose conditions prior to approval of an application which are
deemed necessary by the Police Department, Development Services, and the Fire
Department to insure compliance with the provisions of this Chapter or to protect
the public health and safety. Such conditions shall be limited to the following:
hours of operation; maximum occupancy; fire and life and public safety issues; fire
suppression; exterior signage prohibiting loitering and littering; clean-up of
premises; location of the business; amount and type of calls for police service in
the area; exterior lighting; existence of public telephones; and security guards. The
conditions imposed shall include the posting of a bond or cash equivalent for the
clean-up of premises, dependent upon the physical condition of past premises as
a result of past entertainment events of applicant."
Section 5. San Bernardino Municipal Code Section 5.14.120 is amended to read
11 as follows:
12 "5.14.120
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Appeal
Any applicant aggrieved by the decision of the City Clerk with reference to the
issuance, conditional issuance, denial, suspension, or revocation of a license, may
appeal to the Hearing Officer for the City of San Bernardino. The Hearing Officer
shall be appointed by the Mayor to hear all appeals under this section for a fixed
term not to exceed two years; afterwhich such Hearing Officer shall be ineligible
for reappointment until after one year has passed. Upon the timely filing of an
appeal from the denial, suspension or revocation of a license, the decision of the
City Clerk is stayed until the appeal is decided by the Hearing Officer.
The right to appeal to the Hearing Officer from the denial, suspension or revocation
of any license required by this chapter shall terminate upon the expiration of fifteen
(15) days following the deposit of a certified letter in the United States Post Office
advising the applicant of the action of the City Clerk and of his or her right to
appeal such action to the Hearing Officer.
The hearing shall be held within twenty (20) days of the receipt by the City Clerk
of the appeal, or at the next regularly scheduled meeting of the Hearing Officer,
whichever is sooner.
The Hearing Officer shall render his/her decision within five (5) days from the
conclusion of the hearing. Said decision shall be sent by certified mail. The City
Clerk or any applicant aggrieved by the decision of the Hearing Officer shall have
the right to appeal to the City Planning Commission. Upon the timely filing of an
appeal, the decision of the Hearing Officer is stayed until the appeal is decided by
the Planning Commission. The right to appeal to the City Planning Commission
shall terminate upon the expiration of fifteen (15) days following the deposit of said
decision by certified mail and advising the applicant of his or her right to appeal
such decision to the City Planning Commission. The appeal hearing before the
City Planning Commission shall be held within twenty (20) days of the receipt by
the City Clerk of the appeal request. The Planning Commission shall render its
decision within fourteen (14) days from the conclusion of the hearing. The decision
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1 of the Planning Commission shall be final and conclusive and shall not be subject
to appeal to the Mayor and Common Council. Pursuant to Code of Civil Procedure
2 Section 1094.8, any action to review the decision of the Planning Commission shall
be filed and served not later than twenty-one (21) calendar days following the
3 Planning Commission's decision unless the parties jointly waive the time limit.
4 E. The City shall comply with all of the requirements of Code of Civil Procedure
Section 1094.8 and shall take all lawful steps to insure that any applicant
5 aggrieved by its decision shall be afforded prompt judicial review of said Planning
Commission's decision.
6 (Ord. MC-1059, 10-4-99; Ord. MC-1058, 9-20-99)
7 Section 6. San Bernardino Municipal Code Section 5.14.160 is amended to read
as follows:
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"5.14.160
Violations and Penalties
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Any person who violates Section 5.14.020 is guilty of a misdemeanor, punishable
10 upon conviction in accordance with Section 1.12.010(A) of this Code. Each and every day
during which such person violates Section 5.14.020 shall constitute a separate offense
11 chargeable under this section."
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MC-1l29
1 ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CERTAIN
SECTIONS OF CHAPTER 5.14 OF THE SAN BERNARDINO MUNICIPAL CODE
2 RELATING TO ENTERTAINMENT-DANCES AND ADULT ENTERTAINMENT.
3 I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor
joint
4 and Common Council of the City of San Bernardino at a regular meeting thereof, held
5 on the 19t1Uay of August
, 2002, by the following vote, to wit:
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7 COUNCIL MEMBERS:
AYES
NAYS
ABSTAIN ABSENT
8 ESTRADA
x
9 LIEN
10 MCGINNIS
x
x
11 DERRY
12 SUAREZ
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x
13 ANDERSON
x
14 MC CAMMACK
x
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~nr, I
/-- ," ~--t<-"~"-
Ra hel Clark, City Clerk
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The foregoing Ordinance is hereby approved this ~ ~ay of August
,2002.
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23 Approved as to form
and legal content:
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25 JAMES F. PENMAN
City Attorney
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