Desert Hot Springs City Zoning Code
CHAPTER 17
168 SEXUALLY ORIENTED BUSINESSES
§ 17.168.010 Intent and purpose.
A.
The intent and purpose of this chapter is to:
1.
Regulate sexually oriented businesses to promote the health, safety and general welfare of the citizens of the City;
2.
Establish reasonable and uniform regulations to prevent deleterious effects of sexually oriented businesses within the City; and
3.
Discourage and to minimize the opportunity for criminal conduct.
B.
The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials.
C.
The provisions of this chapter are not intended to:
1.
Limit or restrict the content of any communicative materials, including sexually oriented materials;
2.
Restrict or deny access by adults to sexually oriented materials protected by the First Amendment;
3.
Deny access by the distributors and exhibitors of sexually oriented materials protected by the First Amendment;
4.
Deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market; and/or
5.
Condone or legitimize the distribution of obscene or harmful materials to minors.
(Prior code § 118.01)
§ 17.168.020 Classification of businesses.
The following uses and/or activities shall be classified as sexually oriented businesses:
A.
Adult arcades;
B.
Adult bookstores;
C.
Adult cabarets;
D.
Adult motels;
E.
Adult motion picture theaters;
F.
Adult novelty stores;
G.
Adult theaters;
H.
Adult video stores; and
I.
Nude model studios.
(Prior code § 118.02)
§ 17.168.030 Prohibited uses, conduct and activities.
A.
One of the important purposes of the regulations set forth in this chapter is to discourage and to minimize the opportunity for criminal conduct. As such, nothing in this chapter shall permit or be interpreted to permit any use, conduct, and/or activity which is specifically prohibited under the following California Penal Code sections:
B.
Nothing in this chapter shall be interpreted to permit or permit any use, conduct, and/or activity which violates any Federal, State or local law or regulation.
C.
A sexual encounter establishment is not a permitted use. For purposes of these regulations, a “sexual encounter establishment” means any business or commercial establishment that as one of its important business purposes offers for any form of consideration a place where 2 or more persons may congregate, associate, or consort for the purpose of specified sexual activities when 1 or more of the persons of the establishment is in a state of nudity or where 2 or more persons may congregate, associate, or consort for the purpose of the exposure of specified anatomical areas where 1 of the patrons of the establishment is in a state of nudity or state of semi-nudity. The definition of sexual encounter establishment shall not include an establishment where a medical practitioner, physiologist, psychiatrist or similar professional person licensed by the State engages in medically approved and recognized sexual therapy.
(Prior code § 118.03)
§ 17.168.040 Definitions.
For purposes of this chapter, certain words and phrases are defined as follows:
means a commercial establishment where a significant or substantial portion of the business involves the maintaining of 1 or more electronically or mechanically controlled still or motion picture projectors, slide projectors, video or laser disc players, or other image-producing machines, for the viewing of films, motion pictures, video cassettes, slides, or other photographic reproductions which are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
means a commercial establishment where a significant or substantial portion of the business involves the use, rental, purchase, viewing or perusal, for any form of consideration, of books, magazines, periodicals or other printed matter which are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
means commercial establishment which regularly features any 1 or more of the following:
Persons who appear in a state of nudity or state of semi-nudity in the presence of patrons of the commercial establishment;
Live performances, in the presence of patrons of the commercial establishment, which are characterized by an emphasis on specified anatomical areas or by specified sexual activities;
Films, motion pictures, video cassettes, slides, or other photographic reproductions which are shown to patrons of the commercial establishment and which are characterized by an emphasis on specified sexual activities or specified anatomical areas.
means a commercial establishment which offers public accommodations, for any form of consideration, and:
Provides or makes available to patrons closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and
Which regularly offers or permits to be offered a room for rent or sub-rent for a period of time less than 12 hours.
means a commercial establishment which regularly features the showing of films, motion pictures, video cassettes, slides or similar photographic reproductions which are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
means a commercial establishment where a significant or substantial portion of the business involves the sale or rent of sexually oriented devices.
means a commercial establishment which regularly features persons who appear in a state of nudity or state of semi-nudity for live performances which are distinguished or characterized by an emphasis on specified anatomical areas or specified sexual activities.
means a commercial establishment where a significant or substantial portion of the business involves the use, rental, purchase, viewing or perusal of video cassettes, photographs, films, motion pictures, or similar video reproductions which are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas.
means any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve alcoholic beverages on the premises.
means a person who works or performs in and/or for a sexually oriented business, regardless of whether or not such person is paid a salary, wage or other compensation by the operator of the business.
means and includes any of the following:
The opening or commencement of a business as a new business;
The conversion of an existing business, whether or not a sexually oriented business, to any of the classifications of sexually oriented businesses defined in Section 17.168.020;
The addition of any of the sexually oriented businesses defined in Section 17.168.020, to any of the sexually oriented business defined in Section 17.168.020;
The relocation of any of the sexually oriented businesses defined in Section 17.168.020 to any other existing sexually oriented business defined in Section 17.168.020; or
The substantial enlargement of a sexually oriented business.
means a commercial establishment where a significant or substantial portion of the business involves the viewing of persons who appear in a state of nudity or state of semi-nudity or persons who display specified anatomical areas in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons.
means the display, appearance or showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering or the showing of the covered male genitals in a discernible turgid state.
means and includes the owner, permit holder, custodian, manager, or person in charge of any sexually oriented business.
means any premises that requires a sexually oriented business permit.
means a person in whose name a permit to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit.
means an individual, proprietorship, partnership, corporation, association, or other legal entity.
means any building owned, leased or held by the United States, the State, the County, the City, any special district, school district, or any other agency or political subdivision of the State or the United States, which building is used as a library, community center, children’s center, or any other use having special attraction to children, or which building is often visited by children for social activities unaccompanied by their parents or other adult custodians.
means public land which has been designated for park or recreational activities including, but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, open space, wilderness areas, or similar public land within the City which is under the control, operation or management of the City park and recreation authorities.
with respect to an adult theater, adult cabaret or adult motion picture theater means a regular and substantial course of conduct. The fact that a live performance or film which is distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities is exhibited on 2 or more occasions within a 30-day period; 3 or more occasions within a 60-day period; or 4 or more occasions within a 180-day period, shall to the extent permitted by law be deemed to be a regular and substantial course of conduct.
means any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.
means an area zoned for single-family homes, duplexes, townhomes, multiple-family residences, mobile home parks or subdivisions, and recreational vehicles parks, as set forth in the Desert Hot Springs Zoning Ordinance.
means any public or private educational facility including, but not limited to, child daycare facilities, nursery schools, preschools, kindergartens, elementary schools, secondary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, and universities. School includes the school grounds, but does not include the facilities used primarily for another purpose and only incidentally as a school.
means the display, appearance, or showing of a female breast below a point immediately above the top of the areola and/or a state of undress which less than completely and opaquely covers a human buttock, anus, male or female genitals, pubic region or a female breast below a point immediately above the top of the areola.
means without limitation any artificial or simulated specified anatomical area or other device or paraphernalia that is designed in whole or part for specified sexual activities.
means such a percentage of a business’ activities, space allocation, revenues, advertising targeting, stock-in-trade, floor or display space, business receipts, revenues, or other business undertakings as to indicate to a reasonable person that the sexually oriented portion of the business is one of its important activities, though not necessarily its only or even primary activity.
means and includes any of the following:
means and includes any of the following:
The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation, or sodomy; or
Excretory functions as part of or in connection with the fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts, sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation or sodomy.
means and includes any of the following:
The sale, lease or sublease of the business;
The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; and/or
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 of control.
(Prior code § 118.04)
§ 17.168.050 Exceptions.
A.
The provisions of this chapter shall not apply to a clothing-optional motel or hotel.
B.
For purposes of this chapter, “clothing-optional motel” means a motel, hotel or similar commercial establishment that offers public accommodations for any form of consideration, and:
1.
In the ordinary course of business, permits persons to be nude or semi-nude in and on the common areas of the subject property which are not visible from any public right-of-way;
2.
Except for closed-circuit television transmissions made available for viewing within a private room exclusively rented and occupied by individual patrons, does not provide or make available closedcircuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas;
3.
Does not offer or permit to be offered a room for rent or sub-rent for a period of time less than 12 hours;
4.
Does not offer or permit to be offered any single room for rent or sub-rent more than twice in a 24-hour period;
5.
Except as specifically defined in this section to mean a clothing-optional motel, does not engage in, offer, or permit any conduct or activities in and/or on the subject property that are defined in this chapter to constitute a sexually oriented business.
(Prior code § 118.05)
§ 17.168.060 Compliance of existing uses.
A.
An operator of an existing sexually oriented business shall be permitted a reasonable period of time to install the lighting and surveillance equipment made necessary by the implementation of the provisions of this chapter.
B.
The reasonable period of time shall normally be 30 days from the effective date of the ordinance codified in this chapter to amend the sketch/drawing of the configuration of the premises on file with the City in such a manner as to include the required exterior lighting and surveillance capacity; with up to 90 days thereafter to install the proposed lighting and surveillance equipment.
C.
In the event the operator reasonably requires a longer period of time to install the surveillance equipment and lighting, the City or its designee may grant a longer period of time in consultation with City’s building officials.
(Prior code § 118.06)
§ 17.168.070 Annual fee.
A.
The annual fee for a sexually oriented business permit is $100, to partially offset the costs of monitoring and policing the operations of the business entities involved.
B.
The City Council determines that the actual cost of monitoring and policing each such business is at least that amount.
C.
The fee shall be due yearly on the anniversary of the issuance of the permit and shall be deemed delinquent 30 days thereafter.
(Prior code § 118.07)
§ 17.168.080 California Department of Alcoholic Beverage Control.
To the extent that any provision of this chapter is inconsistent with any regulation or rule of the California Department of Alcoholic Beverage Control applicable to a sexually oriented business, the regulation or rule of the California Department of Alcoholic Beverage Control shall control.
(Prior code § 118.08)
§ 17.168.090 Permit required.
No person shall operate, maintain, manage or conduct a sexually oriented business without a valid sexually oriented business permit issued by the City for the particular type of sexually oriented business. The requirement for a sexually oriented business permit shall be in addition to any other local, State or Federal permit or licensing requirements.
(Prior code § 118.16)
§ 17.168.100 Permit application fee.
An applicant for a sexually oriented business permit shall be required to pay a nonrefundable application fee of $100 at the time of filing an application pursuant to this chapter.
(Prior code § 118.17)
§ 17.168.110 Permit application.
A.
The City’s designee is responsible for granting, denying, revoking, renewing, suspending, and canceling sexually oriented business permits for proposed or existing sexually oriented businesses.
B.
The City’s designee shall be the City Manager, or any other officer or employee designated in writing by the City Manager to deal with the provisions of this chapter.
C.
An application for a permit must be made on a form provided by the City.
D.
The completed application shall contain the following information and shall be accompanied by the following documents:
1.
If the applicant is:
a.
An individual, the individual shall state his/her legal name, any aliases, and date of birth;
b.
A partnership, the partnership shall state its complete name, and the names of all general partners;
c.
A corporation, the corporation shall state its complete name, the names and capacity of all officers, directors and the name and address of the registered corporate agent for service of process.
2.
If the applicant intends to operate the sexually oriented business under a name other than that on the application, he/she must state the sexually oriented business’ fictitious name.
3.
A statement as to whether the applicant or any other individuals identified in the application, excluding any agent for service of process who is not also listed as a director or officer, has had a previous permit under this chapter, or any other similar sexually oriented business ordinance of the City, denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation.
4.
A statement as to whether the applicant or any other individuals identified in the application, excluding any agent for service of process who is not also listed as a director or officer, has been a sole proprietor, general partner, officer, or director of a sexually oriented business that has had a previous permit under this chapter, or any other similar sexually oriented business ordinance of the City denied, suspended or revoked by the City, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of denial, suspension or revocation.
5.
The name(s) of the responsible person(s) who will be on the premises to act as manager during the times that the business is open, or a statement that the applicant has not yet selected the manager(s).
6.
The classification, as defined in this chapter, of sexually oriented business for which the applicant is seeking a permit.
7.
The location of the proposed sexually oriented business, including a legal description of the property, street address, and telephone number(s) currently in service.
8.
The applicant’s address.
9.
A recent photograph of the applicant.
10.
The applicant’s driver’s license or permit number or identification number and social security number and/or the applicant’s State or Federally issued tax identification number.
11.
A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus 6 inches.
(Prior code § 118.18)
§ 17.168.120 Filing of completed application.
Upon receipt of an application properly filed with the City and upon payment of the nonrefundable application fee, the City or its designee shall immediately stamp the application as received on that date.
(Prior code § 118.19)
§ 17.168.130 Processing of completed application.
The City, or its designee, shall grant or deny a completed application for a permit within 15 business days from the date receipt by the City of a complete application. Upon the expiration of the 15th day, unless the City or its designee has given written notice to the applicant, the application shall be deemed granted and the operator shall be excused from the requirement that a duly issued permit be posted at the premises until such time as such permit is issued pursuant to this chapter.
(Prior code § 118.20)
§ 17.168.140 Issuance of permit.
Within 15 business days of receipt of a completed application, the City shall issue a sexually oriented business permit upon verification of the following facts:
A.
The location of the business complies with all applicable zoning laws;
B.
The configuration of the premises, as set out in the sketch or plan submitted with the application, does not reveal any violation of applicable health, zoning, fire and safety laws of the State of California and ordinances of the City applicable thereto, including those set out in this chapter;
C.
The applicants or individuals identified therein, excluding any agent for service of process who is not also listed as a director or officer, are not otherwise disqualified from lawful operation of a sexually oriented business pursuant to any State, County, Federal or local law, including those set out in this chapter;
D.
The applicant is 18 years of age or older;
E.
The applicant has provided all information required by this chapter, none of which is known to the City to be incorrect; and
F.
The application or permit fees required by this chapter have been paid.
(Prior code § 118.21)
§ 17.168.150 Notification of permit denial-Subsequent application.
If the City or its designee denies the application, the applicant shall immediately be notified of the denial and the reason(s) for the denial. Any subsequent application which has been supplemented to cure the grounds for prior denial shall be treated as a new application.
(Prior code § 118.22)
§ 17.168.160 Appeal.
A.
Expedited Administrative Review.
1.
A request for an appeal of the issuance or denial of a sexually oriented business permit application pertaining to expressive conduct that is protected by the State Constitution or the First Amendment to the United States Constitution may be made to the City Council upon the submission of a written request to the City Clerk.
2.
The appeal shall be heard and decided by the City Council in a prompt and expedited way at the next regularly scheduled City Council meeting and in no event later than 15 days from the date the request for appeal was filed with the City Clerk. In the event that the next regularly scheduled City Council meeting will not be conducted within 15 days from the date the request for appeal was filed with the City Clerk, the City Council shall schedule a Special City Council meeting to hear and decide the administrative appeal.
3.
Determinations by the City Council after review of the issuance or denial of a sexually oriented business permit application are deemed to constitute final determinations by the City for purposes of appeal to the Superior Court of California pursuant to the writ of mandate procedures set forth in California Code of Civil Procedure Section 1084 et seq.
B.
Expedited Judicial Review. In accordance with California Code of Civil Procedure Section 1094.8, subsection c, determinations to issue and deny any sexually oriented business permit application pertaining to expressive conduct that is protected by the State Constitution or the First Amendment to the United States Constitution is determined to be eligible for expedited judicial review pursuant to California Code of Civil Procedure Section 1094.8.
(Prior code § 118.23)
§ 17.168.170 Continuing permit obligations.
A.
By applying for a permit under this chapter, the applicant shall be deemed to have consented to the provisions of this chapter and to the exercise by the City or its designee, the Police Chief’s office, and all other City departments charged with enforcing the laws, ordinances and codes applicable in the City, of their respective responsibilities under this chapter.
B.
An operator shall promptly update, correct or supplement the information contained in the application for a sexually oriented business permit on file with the City as necessary to keep the information contained therein accurate.
C.
Every operator shall permit representatives of the City and/or Police, Fire or Health Departments to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law at any time it is occupied or open for business.
(Prior code § 118.24)
§ 17.168.180 Transfer of permit.
A.
A permittee shall not operate sexually oriented business under the authority of a permit at any place other than the address designated in the application for permit.
B.
A permittee shall not transfer his/her permit to another person unless and until such other person satisfies the following requirements:
1.
Obtains an amendment to the permit from the City which provides that he/she is now the permittee, which amendment may be obtained only if he/she has completed and properly filed a completed application for a sexually oriented business permit with the City; and
2.
Pays a transfer fee of 50% of the annual permit fee set by this chapter.
C.
No permit may be transferred during the pendency of administrative procedure following notice by the City or its designee to the permittee that suspension or revocation proceedings have been or will be brought against the permittee, until such proceedings have been completed, withdrawn or otherwise canceled.
D.
A permittee shall not transfer his/her permit to another location.
E.
Any attempt to transfer a permit either directly or indirectly in violation of this section is declared void, and the permit shall be considered abandoned and shall automatically revert to the City.
(Prior code § 118.25)
§ 17.168.190 Visibility of interior-Exceptions.
A.
The entire interior of an adult arcade, adult bookstore, adult novelty store, adult cabaret, adult video arcade, nude model studio, and the entire concession area of an adult motion picture theater or adult theater, the entire common areas of an adult motel, and the entire exhibition area of an adult motion picture theater or, adult theater, shall be visible upon entrance to such areas.
B.
Visibility from the entrance shall not be obstructed by any curtain, door, wall, merchandise rack, or any other thing.
C.
No partially or fully enclosed booths or partially or fully concealed booths shall be maintained.
D.
No patrons shall be permitted access to any area of the premises not visible from the entrance.
E.
This section shall not apply to the following:
1.
Those areas of a sexually oriented business to which only employees are permitted access and patrons are excluded and which cannot be viewed from any area accessible to patrons;
2.
A restroom; provided however, that no restroom shall contain any merchandise, materials, product, or service referenced in Section 17.168.040 of this chapter.
(Prior code § 118.36)
§ 17.168.200 Lighting.
The entire premises of every adult arcade, adult bookstore, and nude model studio, and nonconforming sexual encounter establishment shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than 2 foot-candles as measured at the floor level.
(Prior code § 118.37)
§ 17.168.210 Private viewing booths or rooms.
A.
No viewing room or booth of an adult arcade or adult video arcade may be occupied by more than 1 person at any time.
B.
The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes between any 2 such rooms such as would allow viewing from 1 booth into another or such as to allow physical contact of any kind between the occupants of any 2 such booths or rooms.
C.
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.
(Prior code § 118.38)
§ 17.168.220 Posting of permit.
A valid sexually oriented business permit duly issued pursuant to this chapter shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it can be easily read at all times.
(Prior code § 118.39)
§ 17.168.230 Manager on duty.
A.
There shall be a responsible person on the premises to act as manager at all times during which the business is open.
B.
At all times that any patron is present inside the premises, at least 1 manager shall be situated at a location within the premises so as to allow her/him an unobstructed view of the entire area accessible to patrons. Within those sexually oriented businesses lawfully configured to include more than 1 open room accessible to patrons, such as an adult theater with both a concession area and an exhibition area, or various common areas of an adult motel, sufficient additional managers shall be present as necessary to allow management personnel to maintain an unobstructed view of the entirety at all times of all areas accessible to patrons.
C.
Every permittee shall ensure that all employees are familiar with the provisions of this chapter as amended from time to time and with all other regulations adopted by the City related to sexually oriented businesses.
(Prior code § 118.40)
§ 17.168.240 Modifications to existing businesses.
A.
An operator of a sexually oriented business shall be permitted a reasonable period of time to make modifications to the business premises if such modifications are made necessary by the implementation of the provisions of this chapter.
B.
The reasonable period of time shall normally be 30 days from the effective date of the ordinance codified in this chapter to file the appropriate plans and designs with the City, and up to 90 days thereafter for completion of the modifications.
C.
Should modifications be so extensive as to reasonably require a longer period of time, the City or its designee may grant a longer period of time for completion of such modifications, in consultation with the City’s building officials.
(Prior code § 118.41)
§ 17.168.250 Prohibited contact.
A.
When in a state of nudity or semi-nudity, no employee shall be present in any portion of the premises accessible to a patron(s). For purposes of this chapter, “patron” means any individual who is not an employee.
B.
An employee may perform live entertainment in a state of nudity or semi-nudity on a stage raised at least 18 inches above the immediate floor level and removed at least 6 feet from the nearest portion of the premises accessible to the patron(s).
C.
No patron shall be permitted within 6 feet of any stage utilized for such entertainment.
D.
A separate dressing room facility, to which no patron shall be permitted access, shall be provided for the exclusive use of the employee(s) performing such entertainment.
E.
Access between the dressing room facility and the stage shall be provided for the exclusive use of the employees performing such entertainment and shall be separated from the nearest portion of the premises accessible to the patron(s) by at least 6 feet.
(Prior code § 118.42)
§ 17.168.260 Direct tipping prohibited.
There shall be no physical contact between any employee in a state of nudity or semi-nudity and a patron. No patron shall directly give any gratuity to any employee while the employee is in a state of nudity or seminudity. No employee, when in a state of nudity or semi-nudity, shall solicit or accept any gratuity from any patron. For purposes of this chapter, “gratuity” means anything of value or potential value, including but not limited to money or token(s). For purposes of this chapter, to “directly give” means to transfer from a patron to the person, or any extension from the person, of a nude or semi-nude employee. Nothing in this chapter is intended to prohibit the placing by the patron of a gratuity into or onto any item placed or located at least 6 feet from the nude or semi-nude employee(s).
(Prior code § 118.43)
§ 17.168.270 Exterior security.
A.
All off-street parking provided for, and entrances to, a sexually oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of 1 foot-candle of light on the parking surface and walkways.
B.
The required provision for exterior lighting shall be depicted in the sketch/diagram of the configuration of the premises on file with the City pursuant to the provisions of this chapter.
C.
The operator shall provide a security system that visually records and monitors all off-street parking areas provided for, and entrances to, the sexually oriented business during all times that the business is open or occupied for business. The surveillance equipment utilized shall provide continuous recording for at least a 24-hour period, with all recording maintained for a minimum of 72 hours.
D.
Immediately upon request, the surveillance recording for all or any portion of the previous 72-hour period shall be made available to any representative of the Desert Hot Springs law enforcement agency. Such recordings shall be utilized only for purposes of investigating an alleged violation of a local, State or Federal law, or to the enforcement thereof.
E.
The exterior surveillance capacity shall be depicted in the sketch/diagram of the configuration of the premises on file with the City pursuant to the provisions of this chapter.
F.
Signs shall be posted in the parking area, near the entrance to the premises, and at a conspicuous location inside the premises in such a manner as to notify the public that the exterior of the premises is subject to recorded surveillance in cooperation with the Desert Hot Springs law enforcement agency.
(Prior code § 118.44)
§ 17.168.280 Minors prohibited.
The entrance to any sexually oriented business shall be designed in manner that obscures the view of the interior of the premises from minors outside the premises so as to prohibit minors from viewing or seeing any material, conduct or activities which depict, describe or display specified sexual activities or specified anatomical areas.
(Prior code § 118.45)
§ 17.168.290 Display regulations.
No display or exhibit depicting or describing specified sexual activities or specified anatomical areas shall be placed in, on or at the site of the subject premises in such a manner as to be visible from the exterior of the premises.
(Prior code § 118.46)
§ 17.168.300 Exemptions and defenses.
A.
It is a defense to prosecution for any violation of this chapter that a person appearing in a state of nudity did so in a modeling class operated:
1.
By a college, junior college, or university supported entirely or partly by taxation;
2.
By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
3.
In a structure:
a.
Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing, and
b.
Where, in order to participate in a class, a student must enroll at least 3 days in advance of the class, and
c.
Where no more than 1 nude model is on the premises at any one time.
B.
It is a defense to prosecution for a violation of this chapter that an employee of a sexually oriented business, regardless of whether or not it is permitted under the employee’s bona fide use of a restroom, or during the employees’ bona fide use of a restroom, or during the employee’s bona fide use of a dressing room which is accessible only to employees.
(Prior code § 118.47)
§ 17.168.310 Public nuisance.
A violation of Sections 17.168.060, 17.168.070, 17.168.090, 17.168.100, 17.168.170, 17.168.180, 17.168.190, 17.168.200, 17.168.210, 17.168.220, 17.168.230, 17.168.240, 17.168.250, 17.168.260, 17.168.270, 17.168.280 and 17.168.290 of this chapter by any person responsible for committing, causing or maintaining such violation shall constitute a public nuisance which shall be subject to the nuisance abatement provisions of Sections 4.16.020 through 4.16.140 of the Desert Hot Springs Municipal Code.
(Prior code § 118.56)
§ 17.168.320 Infraction violation.
A violation of Sections 17.168.060, 17.168.070, 17.168.090, 17.168.100, 17.168.170, 17.168.180, 17.168.190, 17.168.200, 17.168.210, 17.168.220, 17.168.230, 17.168.240, 17.168.250, 17.168.260, 17.168.270, 17.168.280 and 17.168.290 of this chapter by any person responsible for committing, causing or maintaining such violation shall constitute an infraction violation and shall be subject to the infraction provisions of Sections 4.28.010 through 4.28.100 of the Desert Hot Springs Municipal Code.
(Prior code § 118.57)
§ 17.168.330 Misdemeanor violation.
A fourth violation and subsequent violations of Sections 17.168.060, 17.168.070, 17.168.090, 17.168.100, 17.168.170, 17.168.180, 17.168.190, 17.168.200, 17.168.210, 17.168.220, 17.168.230, 17.168.240, 17.168.250, 17.168.260, 17.168.270, 17.168.280 and 17.168.290 of this chapter within a 12-month period shall be deemed a misdemeanor violation subject to the fines and imprisonment provisions set forth in Sections 4.32.010 through 4.32.130 of the Desert Hot Springs Municipal Code.
(Prior code § 118.59)
§ 17.168.340 Administrative citation, notice of violation and other additional remedies.
A.
Nothing in this chapter shall prevent or restrict the City from taking such other lawful action as is necessary to prevent or remedy any violation or noncompliance. Such other lawful actions shall include, but shall not be limited to, issuance of an administrative citation pursuant to Sections 4.24.010 through 4.24.200 of the Desert Hot Springs Municipal Code, the issuance of a notice of violation pursuant to Sections 4.20.010 through 4.20.090 of the Desert Hot Springs Municipal Code, a civil nuisance abatement or equitable action for injunctive relief or an action at law for damages in any court of competent jurisdiction.
B.
Any person issued an administrative citation hereunder shall for each separate violation be subject to:
1.
An administrative fine in an amount not to exceed $100 for the first citation;
2.
An administrative fine in an amount not to exceed $250 for a second citation issued for the same offense within a 12-month period of the date of the first offense; and
3.
A fine in an amount not to exceed $500 for a third and any subsequent citation issued for the same offense within a 12-month period of the date of the first offense.
(Prior code § 118.60)
§ 17.168.350 Grounds for permit modification, suspension and/or revocation.
A.
An existing permit may be suspended, modified, or revoked as necessary to assure the preservation of the public health and safety, if the evidence presented established that one of the following conditions exist:
1.
The building, structure, equipment, location or manner of operation of such business does not comply with the requirements of or fails to meet the standards of the health, zoning, fire and safety laws of the State and ordinances of the City applicable to such business operations.
2.
The permittee, his/her employee, agent, partner, director, officer, stockholder or manager has knowingly made any false, misleading or fraudulent statements of material fact in the application for sexually oriented business permit, or in any report or record required to be filed with the City pertaining to the permit for the sexually oriented business, or has violated any rule or regulation duly adopted by the City relating to sexually oriented businesses, including those set out in this chapter.
3.
A court of competent jurisdiction has found that the permittee, his/her employee, agent, partner, director, manager, or stockholder has knowingly engaged in or allowed or permitted to be committed any unlawful act of sexual intercourse, sodomy, oral copulation, masturbation, or distribution of obscenity, on or in the subject premises.
4.
A court of competent jurisdiction has found that the permittee, his/her employee, agent, partner, director, manager, or stockholder has knowingly engaged in or permitted or allowed to occur unlawful solicitations for sexual intercourse, sodomy, oral copulation, masturbation or distribution of obscenity, on or in the subject premises.
5.
A court of competent jurisdiction has found that the permittee, his/her employee, agent, partner, director, manager, or stockholder has knowingly engaged in or permitted or allowed, in or on the premises, the unlawful possession, use or sale of a controlled substance, as defined by the California Uniform Controlled Substances Act, California Health and Safety Code Section 11000 et seq., as amended from time to time.
6.
More than 30 days have elapsed since a tax, fee, fine, any form of regulatory assessment or judgment for monetary damages, irrespective of any other form of relief set out in the judgment, which is to be paid to the City has been imposed against a sexually oriented business, and the sum remains owing.
B.
In the event that a permit for a sexually oriented business is revoked pursuant to any applicable law, the premises shall be closed and shall not be used as a sexually oriented business of any classification for a period of 1 year commencing on the date of revocation. Further, the operators of the sexually oriented business so closed shall be disqualified from operating any other sexually oriented business established thereafter within the City for a period of 1 year commencing on the date that the permit was revoked.
C.
In the event that a permit for a sexually oriented business is suspended pursuant to any applicable law, the operators of the subject sexually oriented business shall be disqualified from operating the subject sexually oriented business as well as any other sexually oriented business established thereafter within the City during the entire period of such suspension.
(Prior code § 118.61; Ord. 695 10-15-19)
§ 17.168.360 Procedure to modify, suspend, or revoke permits.
A.
Administrative Review. If grounds exist for the modification, suspension, and/or revocation of a permit are found pursuant to Section 17.168.350, the City may initiate proceedings according to applicable sections of Chapter 4.36 of the Desert Hot Springs Municipal Code, or any successor chapter. The decision of the Hearing Officer shall be final.
B.
Expedited Judicial Review. In accordance with the California Code of Civil Procedure, determinations to issue and deny any sexually oriented business permit application pertaining to expressive conduct that is protected by the State Constitution or the First Amendment to the United States Constitution is determined to be eligible for expedited judicial review pursuant to the California Code of Civil Procedure.
(Prior code § 118.62; Ord. 695 10-15-19)
§ 17.168.370 Immunity from prosecution.
The City and its designee, the Chief of Police’s office 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 a sexually oriented business while acting within the scope of authority conferred by this chapter.
(Prior code § 118.63)