Chapter 19- Adult-Oriented Businesses

Sections:

 

19.010          Findings.

19.020          Legislative purpose.

19.030          Definitions.

19.040          Minimum proximity requirements.

19.050          Permit required.

19.060          Severability.

 

 

 

 

 

19.010    Findings.

  1. The Board of Supervisors, in adopting this chapter, takes legislative notice of the existence and content of the following studies concerning the adverse secondary effects of Adult-Oriented Businesses in other cities: Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977). The Board of Supervisors finds that these studies are relevant to the problems addressed by the County in enacting this chapter to regulate the adverse secondary effects of Adult-Oriented Businesses, and more specifically finds that these studies provide convincing evidence that:
    1. Adult-Oriented Businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas.
      1. Both the proximity of Adult-Oriented Businesses to sensitive land uses and the concentration of Adult-Oriented Businesses tend to result in blight and deterioration of the areas in which they are located.
      2. The proximity and concentration of Adult-Oriented Businesses adjacent to residential, recreational, religious, community or educational uses can have adverse secondary effects on local businesses and residences.
      3. There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by Adult-Oriented Businesses, including but not 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 convincing evidence that Adult-Oriented Businesses that are not regulated as to permissible locations often have a deleterious effect on nearby businesses in residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values.
    2. Based on the foregoing, the Board of Supervisors of Mono County finds and determines that special regulation of Adult-Oriented Businesses is necessary to ensure that 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 need for such special regulations is based upon the recognition that Adult-Oriented Businesses have serious objectionable operational characteristics, when located in direct proximity to sensitive uses such as dwellings, parks, schools, churches, or public buildings thereby having a deleterious effect upon the adjacent areas. It is the purpose and intent of these special regulations to prevent such adverse secondary effects.
    3. Mono County is a rural county that is made up mostly (at least 94%) of public lands over which the County lacks land use authority. Very little private land exists within the county and, of that private land, only a small portion (less than 1%) is available for any type of commercial use. Based on the above, and on a thorough review of decisions of the United States Supreme Court, the United States Court of Appeals for the 9th Circuit and California Courts, the Board finds that the locational requirements established by this chapter do not unreasonably restrict the establishment or operation of constitutionally protected Adult-Oriented Businesses in Mono County, and a sufficient reasonable number of appropriate locations for Adult-Oriented Businesses are provided by this chapter.
    4. In developing this chapter, the Board of Supervisors has been mindful of legal principles relating to regulation of Adult-Oriented Businesses and does not intend to suppress or 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 manner regulations that address the adverse secondary effects of Adult-Oriented Businesses. The Board of Supervisors has considered decisions of the United States Supreme Court regarding local regulation of Adult-Oriented Businesses, including but not limited to: City of Erie v. Pap’s A.M., 12 S.Ct. 1382 (2000); Young v. American Mini Theaters, Inc., 427 US 50 (1976) (Reh. denied 429 U.S. 873); Renton v. Playtime 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); United States Court of Appeals 9th Circuit decisions, including but not limited to: Diamond v. City of Taft, 2000 WL 821287 (9th Cir. (Cal.)); Topanga Press, et al. v. City of Los Angeles, 989 F.2d 1524 (1993); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), pet. For cert. Filed (1999); several California cases including but not limited to: Tily B. v. City of 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 of Vallejo v. Adult Books, et al., 167 Cal.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On, Inc. v. Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993) 10 F.3d 123, International Eateries v. Broward County (11th Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074.
    5. General plans, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in Mono County and to help assure that all operators of Adult-Oriented Businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects that naturally accompany the operation of such businesses.
    6. The Board of Supervisors recognizes the possible harmful effects on children and minors exposed to the effects of such Adult-Oriented Businesses and the deterioration of respect for family values, and the need and desire of children and minors 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; and the particular need to reduce such effects near schools, where large numbers of children spend much of their time; and the Board of Supervisors desires to minimize and control the adverse secondary side effects associated with the operation of Adult-Oriented Businesses and thereby protect the health, safety, and welfare of the citizens of Mono County; protect the citizens from increased crime; preserve the quality of life; preserve property values and the character of surrounding 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.
    7. It is not the intent of the Board of Supervisors in enacting this chapter, or any provision thereof, to condone or legitimize the distribution of obscene material, and the County recognizes that State law prohibits the distribution of the obscene materials and expects and encourages law enforcement officials to enforce state obscenity statutes against such illegal activities in Mono County.
    8. Nothing in this chapter is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, or use that violates any County ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter or the exhibition or public display thereof.
    9. While the Board of Supervisors desires to protect the rights conferred on Adult-Oriented Businesses by the United States Constitution, it does so in a manner that ensures the continued and orderly development of property within the county and diminishes, to the greatest extent feasible, those undesirable secondary effects that the aforementioned studies have shown to be associated with the development and operation of Adult-Oriented Businesses.

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19.020    Legislative purpose.

It is the intent of the chapter to prevent community-wide adverse economic impacts, increased crime, decreased property values, and the deterioration of neighborhoods that can be brought about by the location of Adult-Oriented Businesses in close proximity to incompatible uses such as schools for minors, churches, parks, public buildings and residentially designated districts or uses. It is the purpose of this chapter to establish reasonable and uniform regulations to prevent the location of Adult-Oriented Businesses in close proximity to incompatible uses, while permitting the location of Adult-Oriented Businesses in certain areas.

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19.030   Definitions.

For the purpose of this chapter the words and phrases shall have the same meanings respectively ascribed to them by this section and by Chapter 02 of the Land Development Regulations set forth in Section VI of this General Plan Land Use Element:

“Adult-Oriented Businesses.”  The term "Adult-Oriented Businesses" as used in this chapter means any one of the following:

  1. Adult Arcade. The term "adult arcade" as used in this chapter means an establishment where, for any form of consideration, one or more still or motion picture projectors, or similar machines, for viewing by five or fewer persons each, are used to show films, computer generated images, motion pictures, video cassettes, slides or other photographic reproductions 30% or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
  2. Adult Bookstore. The term "adult bookstore" as used in this chapter means an establishment that has 30% or more of its stock in books, magazines, periodicals or other printed matter, or of photographs, films, motion pictures, video cassettes, slides, tapes, records or other form of visual or audio representations that are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities and/or specified anatomical areas.
  3. Adult Cabaret. The term "adult cabaret" as used in this chapter means a nightclub, bar, restaurant, or similar business establishment that: 1) regularly features live performances that are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or 2) that regularly features persons who appear semi-nude; and/or 3) shows films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions 30% or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
  4. Adult Hotel/Motel. The term "adult hotel/motel" as used in this chapter means a hotel or motel or similar business establishment offering public accommodations for any form of consideration that: 1) provides patrons with closed-circuit television transmissions, films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions 30% or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and 2) rents, leases, or lets any room for less than a six-hour period, or rents, leases, or lets any single room more than twice in a 24-hour period.
  5. Adult Motion Picture Theater. The term "adult motion picture theater" as used in this chapter is a business establishment where, for any form of consideration, films, computer generated images, motion pictures, video cassettes, slides or similar photographic reproductions are shown, and 30% or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
  6. Adult Theater. The term "adult theater" as used in this chapter means a theater, concert hall, auditorium, or similar establishment that, for any form of consideration regularly features live performances that are distinguished or characterized by an emphasis on the display of specified anatomical areas or specified sexual activities.
  7. Modeling Studio. The term "modeling studio" as used in this chapter means a business that provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who, for the purposes of sexual stimulation of patrons, display "specified anatomical areas" to be observed, sketched, photographed, painted, sculpted or otherwise depicted by persons paying such consideration. "Modeling studio" does not include schools maintained pursuant to standards set by the state Board of Education. "Modeling studio" further does not include a studio or similar facility owned, operated, or maintained by an individual artist or group of artists, and that does not provide, permit, or make available "specified sexual activities."

“Adult-Oriented Business Operator”  The term "Adult-Oriented Business Operator" as used in this chapter (hereinafter "operator") means a person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of an Adult-Oriented Business or the conduct or activities occurring on the premises thereof.

“Applicant”  The term “applicant” as used in this chapter is a person who is required to file an application for a permit under this chapter, including an individual owner, managing partner, officer of a corporation, or any other operator, manager, employee, or agent of an Adult-Oriented Business.

“Church”  The term "church" as used in this chapter is a structure used primarily for religious worship and related religious activities.

“Community Development Director” The term “Community Development Director” as used in this chapter shall mean the Community Development Director of Mono County or the authorized representatives thereof.

“Distinguished or Characterized by an Emphasis Upon” As used in this chapter, the term "distinguished or characterized by an emphasis upon" shall mean and refer to the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon" the depiction or description of specified sexual activities or specified anatomical areas, the films so described are those whose dominant or predominant character and theme are the depiction of the enumerated sexual activities or anatomical areas. See Pringle v. City of Covina, 115 Cal.App.3 151 (1981).

“Establishment of an Adult-Oriented Business” As used in this chapter, to establish an Adult-Oriented Business shall mean and include any of the following.

  1. The opening or commencement of any Adult-Oriented Business as a new business;
  2. The conversion of an existing business, whether or not an Adult-Oriented Business, to any Adult-Oriented Businesses defined herein;
  3. The addition of any of the Adult-Oriented Businesses defined herein to any other existing Adult-Oriented Business; or
  4. The relocation of any such Adult-Oriented Business.

“Figure Model”  The term "figure model" as used in this chapter, means any person who, for pecuniary compensation, consideration, hire or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted.

“Health Officer” The term “Health Officer” as used in this chapter means the Mono county Health Officer or his or her duly authorized representative.

“Nudity or a State of Nudity” The term "nudity or a state of nudity" as used in this chapter means the showing of the human male or female genitals or pubic area with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple or areola.

“Operate an Adult-Oriented Business” As used in this chapter, "operate an Adult-Oriented Business" means the supervising, managing, inspecting, directing, organizing, controlling or in any way being responsible for or in charge of the conduct of activities of an Adult-Oriented Business or activities within an Adult-Oriented Business.

“Permittee” The term "permittee" as used in this chapter means the person to whom an Adult-Oriented Business Permit is issued.

“Person” The term “person” as used in this chapter means any individual, partnership, co-partnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

“Public Building”  The term “public building” as used in this chapter is a building or structure owned or operated by a public entity (including, but not limited to Mono County) which is open to and frequented by members of the general public (e.g., a public library or community center).

“Regularly Features” The term "regularly features" with respect to an adult theater or adult cabaret means a regular and substantial course of conduct. The fact that live performances that are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities occurs on two or more occasions within a 30-day period; three or more occasions within a 60-day period; or four 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.

“School” The term "school" as used in this chapter is any institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained pursuant to standards set by the state Board of Education or any child or day care facility. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college, or university.

“Semi-Nude” The term “semi-nude” as used in this chapter means a state of dress in which clothing covers no more than the genitals, pubic region, buttocks, and nipple and areola of the female breast, as well as portions of the body covered by supporting straps or devices.

“Specified Anatomical Areas” As used in this chapter, the term "specified anatomical areas" shall mean and include any of the following: less than completely and opaquely covered human:

  1. Genitals or pubic region;
  2. Buttocks; and
  3. Female breast below a point immediately above the top of the areola.

 

“Specified Sexual Activities” As used in this chapter, the term "specified sexual activities" shall mean and include any of the following, whether performed directly or indirectly through clothing or other covering:

  1. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast;
  2. Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;
  3. Masturbation, actual or simulated;
  4. Excretory functions as part of or in connection with any of the other activities described in subdivision (1) through (3) of this subsection.

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19.040    Minimum proximity requirements.

Notwithstanding anything to the contrary contained in the Mono County Code or Mono County General Plan, no Adult-Oriented Business shall be established or located on property in the county other than property with the land use designation of Rural Resort (RU), Industrial Park (IP), or Industrial (I), as those designations are defined in the Land Use Element of the Mono County General Plan, or within specified distances of certain land uses as set forth below:

  1. No such business shall be established on or within 500 feet from any property with a residential land use designation (including Rural Residential (RR), Single-Family Residential (SFR), Multi-Family Residential (MFR), Estate Residential (ER) and Rural Mobile Home (RMH) or from a building or structure used as a dwelling, park, church, or public building.
  2. No Adult-Oriented Business shall be established within 3,000 feet from a school.
  3. The distances set forth above shall be measured as a radius from the Adult-Oriented Business to the property line of the residentially designated properties or park, or to the actual structure used as a dwelling, school, church, or public building.

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19.050    Permit required.

In addition to complying with the location restrictions set forth above, all Adult-Oriented Businesses shall comply with the permit requirements and other operational standards contained in Chapter 5.45 of the Mono County Code.

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19.060    Severability.

If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this chapter or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The Board of Supervisors hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more of those be declared unconstitutional, or invalid, or ineffective.

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