HomeMy WebLinkAboutMC-1060
. .
Adopted: October 18, 1999
Effective: November 18, 1999
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ORDINANCE NO.
MC-l060
ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
19.06.030(2)(A) OF THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT
CODE) RELATING TO ADULT BUSINESSES.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
DO ORDAIN AS FOLLOWS:
SECTION 1. FINDINGS. The Common Council of the City of
San Bernardino finds that:
(a) The City of San Bernardino, California has reviewed ahd
analyzed numerous studies, reports, articles, judicial decisions,
and the experience and legislative findings of other
municipalities and counties in Southern California, and around the
country concerning the impacts, or "secondary effects" of Adult
Businesses (as that term is defined in Chapter 19.06 of this Code)
that provide live erotic entertainment where the Performers are
nude, partially nude, or clothed in attire commonly referred to as
pasties and a g-string.
(b) Prior to the adoption of this Ordinance, the City
adopted an Ordinance relating to licensing requirements
premises offering Adult Businesses entertainment.
has
for
(c) The Common Council has previously found that there are
significant and serious secondary effects from Adult Businesses
that justify regulation to protect the public health, safety and
welfare.
(d) The Common Council has previously been presented with
evidence of those secondary effects relating to zoning
regulations.
(e) In Barnes v. Glen Theaters(1991)501 U.S.560, the United
States Supreme Court found it to be constitutionally permissible
to prohibit nudity, including public nudity in Adult Businesses,
in part due to the secondary effects associated with such public
nudity in Adult Businesses which secondary effects include, but
are not limited to the increase in prostitution, increase in
sexual assaults, increase in the spread of sexually transmitted
diseases and the increase in criminal activity.
(f) The City of San Bernardino has for many years engaged
in rigorous, firm, and effective policies and regulations relating
to uses and activities that could have adverse impacts on the
continued stability and vitality of the residential and business
areas of the City, and the regulations imposed by this Ordinance,
are a continuation of and consistent with those long-standing
policies and regulations.
HE/dcm[Adult.Bus.OrdJ
I
, MC-l060
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SECTION 2.
read as follows:
lIA.
1.
Section 19.06.030(2)(A) is hereby amended to
Adult Businesses.
Legislative Purpose. It is the intent of this
ordinance to prevent community wide adverse
economic impacts, increased crime, decreased
property val ues, and the deterioration of
neighborhoods which can be brought about by the
concentration of Adult Businesses in close
proximity to each other or proximity to other
incompatible uses such as schools, parks,
religious institutions, and residentially zoned
districts or uses. The City Council finds that
it has been demonstrated in various communities
that the concentration of Adult Businesses causes
an increase in the number of transients in the
area, and an increase in crime, and in addition
to the effects described above can cause other
businesses and residents to move elsewhere. It
is, therefore, the purpose of this article to
establish reasonable and uniform regulations to
prevent the concentration of Adult Businesses or
their close proximity to incompatible uses, while
permitting the location of Adult Businesses in
certain areas. It is also the purpose of this
ordinance to regulate Adult Businesses in order
to promote the health, safety, and general
welfare of the citizens of the City. The
provisions of this ordinance have neither the
purpose nor effect of imposing a limitation or
restriction on the content of any communicative
materials, including adult materials. Similarly,
it is not the intent nor effect of this ordinance
to restrict or deny access by adults to adult
materials protected by the First Amendment, or to
deny access by the distributors and exhibitors of
adult entertainment to their intended market.
Neither is it the intent nor effect of this
ordinance to condone or legitimize the
distribution of obscene material.
2.
Definitions. For the purpose of this section, the
following definitions shall apply:
a.
Adult Arcade. An establishment where, for any
form of consideration, one or more motion picture
projectors, slide projections or similar
machines, for viewing by 5 or fewer persons each,
are used to show films, motion pictures, video
cassettes, slides or other photographic
reproductions which are characterized by an
emphasis upon the depiction or description of
"specified sexual activities" or "specified
anatomical areas".
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b.
c.
Adul t Bookstore. An establishment which has a
substantial portion of its stock-in-trade and
offers for sale for any form of consideration any
1 or more of the following:
(1) Books, magazines, periodicals or other
printed matter, or photographs, films,
motion pictures, video cassettes, slides or
other visual representations which are
characterized by an emphasis upon the
depiction or description of .specified
sexual activities. or "specified anatomical
areaslli or
(2) Instruments, devices or paraphernalia which
are designed for use in connection with
"specified sexual activities".
Adult Business / Adult Entertainment Business
means:
(1) Any business establishment which as a
regular and substantial course of conduct
offers, sells or distributes adult-oriented
merchandise or sexually oriented
merchandise, or which offers to its patrons
materials, products, merchandise, services
or entertainment characterized by an
emphasis on matters depicting, describing,
or relating to .specified sexual activities"
or "specified anatomical areas," but not
including those uses or activities which are
preempted by State law; or
(2) Any business establishment or concern which
as a regular and substantial course of
conduct operates as an adult arcade, adult
bookstore, adult cabaret, adult motel, adult
motion picture theater, adult theater,
massage parlor, or sexual encounter
establishment.
d.
Adult Cabaret. Nightclub, bar, restaurant or
similar establishment which regularly features
live performances 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 reproductions which are
characterized by an emphasis upon the depiction
or description of "specified sexual activities.
or .specified anatomical areas".
e.
Adul t Motel. A motel or similar establishment
offering public accommodations for any form of
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consideration which provides patrons with closed-
circuit television transmissions, films, motion
pictures, video cassettes, slides or other
photographic reproductions which are
characterized by an emphasis upon the depiction
or description of "specified sexual activities"
or "specified anatomical areas".
f.
Adult Motion Picture Theater. An establishment
where, for any form of consideration, films,
motion pictures, video cassettes, slides or
similar photographic reproductions are shown, 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".
g.
Adult Theater. A theater, concert hall,
auditorium or similar establishment which, for
any form of consideration, regularly features
live performances which are characterized by the
exposure of "specified anatomical areas" or by
"specified sexual activities".
h.
Establishment of an Adult Entertainment 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 entertainment
business, to any of the adult entertainment
businesses defined herein;
(3) The addition of any of the adult
entertainment businesses defined herein to
any other existing adult entertainment
business; or
(4) The relocation of any such business.
i.
Massage Parlor. An establishment where, for any
form of consideration, massage, alcohol rub,
fomentation, electric or magnetic treatment, or
similar treatment or manipulation of the human
body is administered unless such treatment or
manipulation is administered by a medical
practitioner, chiropractor, acupuncturist,
physical therapist or similar professional person
licensed by the State. This definition does not
include an athletic club, health club, school,
gymnasium, reducing salon, spa or similar
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k.
m.
establishment where massage
manipulation of the human body is
incidental or accessory service.
or similar
offered as an
j .
Sexual Encounter Establishment. An
establishment, other than a hotel, motel or
similar establishment offering public
accommodations, which, for any form of
consideration, provides a place where 2 or more
persons may congregate, associate or consort in
connection with "specified sexual activities" or
the exposure of "specified 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.
Specified Anatomical Areas. Includes any of the
following:
(1) Less than completely and opaquely covered
human genitals, pubic region, buttocks, anus
or female breasts below a point immediately
above the top of the areola; or
(2) Human male genitals in a discernibly turgid
state, even if completely and opaquely
covered.
1.
Specified Sexual Activities: Includes any of the
following:
(1) The fondling or other erotic touching of
human genitals, pubic region, buttocks, anus
or female breasts;
(2 )
Sex acts,
simulated,
copulation
normal or perverted, actual or
including intercourse, oral
or sodomy;
(3) Masturbation, actual or simulated; or
(4 )
Excretory functions as part of or
connection with any of the activities
forth in subdivisions (1) through (3)
this subsection.
in
set
of
Substantial Enlargement, The increase in floor
area occupied by the business by more than 10%,
as such floor area exists on the effective date
of this Development Code.
n.
Substantial Portion. For the purposes of this
section "substantial portion" shall mean 20% or
more of the face value of the stock in trade, or
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20% of the floor area of the store, whichever is
more. MC-799 7/2/91.
Adult Business Deve109ment Permit II. Adult businesses
are permitted, subject to a Development Permit II, only
in the CH and IL land use districts. It shall be
unlawful for any person to establish an Adult Business
in the City of San Bernardino unless the person first
obtains and continues to maintain in full force and
effect a Development Permit II from the City of San
Bernardino as herein required.
a. Notwithstanding any other provision of this
Development Code, the Development/Environmental
Review Committee (DERC) shall adopt findings and
approve an application for an Adult Business
Development Permit II within forty-five (45) days
after receipt of a complete application if the
application satisfies the requirements of this
section. If the DERC determines that the
application does not satisfy the requirements of
this section, the DERC shall deny the
application.
b. Any party shall have the right to appeal the
DERC's decision to the Planning Commission, and
to subsequently appeal the Planning Commission's
decision to the Council pursuant to Development
Code Chapter 19.52. The Planning Commission and
the Council shall each hold a hearing and shall
render a decision within thirty (30) days after
each appeal is filed unless a continuance is
requested by the applicant for the Adult Business
Development Permit II.
c. Pursuant to Code of Civil Procedure Section
1094.6, any action to review the decision of the
Council shall be commenced not later than the
ninetieth day after the Council's decision is
rendered. The Council shall take all lawful
steps to insure that any party aggrieved by its
decision shall be afforded prompt judicial review
of said Council's decision.
d.
of
Business
Adult
Standards for Approval
Development Permit II:
(1) The operation, as proposed by the applicant,
would comply with all applicable laws,
including but not limited to the City's
building, fire, zoning and health
regulations.
(2) The applicant has not knowingly made any
false, misleading or fraudulent statement of
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fact in the application process, or on any
document required by the City in conjunction
therewith.
(3) It is unlawful to cause or permit the
establishment or substantial enlargement of
an adult business, within 2,000 feet of
another adult business or within 1,000 feet
of any religious institution which received
development approval prior to December 14,
1994, any school or any public park within
the City or within 1,000 feet of any
property designated for residential use or
used for residential purposes. MC 915
12/20/94, MC 942 6/6/95
(4) Measurement of Distance. The distance
between any 2 adult entertainment businesses
shall be measured in a straight line,
wi thout regard to intervening structures,
from the closest exterior structural wall of
each business, The distance between any
adult entertainment business and any
religious institution, school or public park
or any property designated for residential
use or used for residential purposes shall
be measured in a straight line, without
regard to intervening structures, from the
closest exterior structural wall of the
adult entertainment business to the closest
property line of the religious institution,
school or public park or the property
designated for residential use or used for
residential purposes. Should the straight
line distance be intersected by a freeway, a
river or a flood control channel, the
distance shall instead be measured by the
shortest route of travel. MC 977 7/31/96.
(5) Signs. All on-site signage shall conform to
Chapter 19.22
(6) Viewing Area.
a.
It is unlawful to maintain, operate or
manage or permit to be maintained,
operated or managed any adult business
in which the viewing areas are not
visible from a continuous main aisle or
are obscured by a curtain, door, wall,
or other enclosure. For purposes of
this Section, viewing area means the
area where a patron or customer would
ordinarily be positioned while watching
the performance, picture, show or film.
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b. It is unlawful for more than 1 person
at a time to occupy any individual
partitioned viewing area or booth.
c. It is unlawful to create, maintain or
permi t to be maintained any holes or
other openings between any 2 booths or
individual viewing areas for the
purpose of providing viewing or
physical access between the booth or
individual viewing area.
d. The opening to the viewing area shall
be from the main aisle.
(7) The applicant and owner, and every
subsequent owner of the adult business shall
obtain an adul t entertainment license
pursuant to SBMC Chapter 5.14. Failure to
maintain said adult entertainment license in
effect while the adult business is in
operation shall be grounds for revocation
of the Adult Business Development Permit II.
The conditions of approval imposed on said
adult entertainment license shall be
included as conditions of approval on the
Adult Business Development Permit II.
(8) All construction shall comply with all
applicable requirements ln the San
Bernardino Municipal Code and Development
Code including, but not limited to the
California Building Standards Code as
incorporated in San Bernardino Municipal
Code Chapter 15.04.
(9) The DERC shall impose additional conditions
prior to approval of an application for an
Adult Business Development Permit II which
are deemed necessary by the DERC to insure
compliance with the Development Code and to
protect the public health and safety. Such
conditions shall be limited to the
following: hours of operation, maximum
occupancy, fire and life safety issues, fire
suppression, exterior signage, exterior and
interior lighting, parking, landscaping,
existence of public telephones, and security
guards. "
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. MC-l060
ORDINANCE OF THE CITY OF SAN BERNARDINO
19.06.030(2)(A) OF THE SAN BERNARDINO MUNICIPAL
CODE) RELATING TO ADULT BUSINESSES.
AMENDING SECTION
CODE (DEVELOPMENT
I HEREBY CERTIFY that the foregoing ordinance was duly
adopted by the Mayor and Common Council of the City
of
San Bernardino at a ioint regular
meeting thereof, held on
the 18th day of October
, 1999, by the following vote, to wit:
Council Members: AYES
NAYS
ABSTAIN
ABSENT
ESTRADA
x
LIEN
x
McGINNIS
x
SCHNETZ
x
(VACANT)
ANDERSON
x
MILLER
x
~~a~: ~k
The foregoing ordinance is hereby approved this 19th day
of
October
, 1999.
~
Valles, Mayor
of San Bernardino
Approved as to form
and legal content:
JAMES F. PENMAN,
City Attorney
BY:~~
HE/dcm[Adult.Bus.OrdJ
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