Loading...
HomeMy WebLinkAboutMC-1060 . . Adopted: October 18, 1999 Effective: November 18, 1999 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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". 2 ~C-1060 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 3 MC-1060 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 4 MC-l060 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 5 ,MC-l060 1 2 3. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 6 ,MC-l060 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 7 .MC-l060 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. " 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . 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 9