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HomeMy WebLinkAbout08 - Amendments to Chapters 5.28, 5.96 and 10.54 of the Newport Beach Municipal Code for Obraining and Retaining and Adult Oriented Business PermitJANUARY 11, 1999 AGENDA ITEM NO. 8 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY January 11, 1999 TO: Mayor and Members of the City Council FROM: Robin L. Clauson, Assistant City Attorney RE: PROPOSED ORDINANCE AMENDMENTS TO CHAPTERS 5.28, 5.96 AND 10.54 OF THE NEWPORT BEACH MUNICIPAL CODE FOR OBTAINING AND RETAINING AN ADULT ORIENTED BUSINESS PERMIT Background: The City recently received an opinion from the Court of Appeal, Fourth Appellate District, regarding three lawsuits between the City of Newport Beach and Tily B., Inc. As the Council has already been notified, the Court of Appeal upheld the City's actions in all three lawsuits. However, certain technical amendments should be made to the Adult Oriented Businesses regulations to clarify the intent behind the original regulations consistent with the Court's opinion. All proposed amendments have been shown in cross out and underline format. In addition, I have made a proposed amendment to change an exemption from Chapter 5.28. Section 5.28.090 exempts private clubs where admission is not open to the public. Based upon this exemption, private clubs such as yacht clubs in the City are not required to have live entertainment permits. This exemption does not recognize that the same noise and traffic impacts can occur in private clubs that provide live entertainment as well as businesses open to public. Furthermore, the negative secondary effects that can result from adult oriented businesses do not necessarily change because the adult entertainment is provided in a private club. Therefore, the amendment would delete the exemption for private clubs. This requirement would be prospective for future clubs; existing private clubs would be grandfathered under the current exemption. Recommendation: We recommend that the City Council introduce the proposed ordinance amendments to Chapters 5.28, 5.96 and 10 n pass to second reading for adoption on January 25, 1999. () Robin L. Clauson, Assistant City Attorney RC:da Attachment F:\ users\ cat \shared\CCmemoWdult5 - 28810- 45.doc ORDINANCE NO. 99_ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING CHAPTER 5.28 AND CHAPTER 5.96 OF TITLE 5 AND CHAPTER 10.54 OF TITLE 10 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO TECHNICAL AMENDMENTS TO THE OPERATIONAL CRITERIA FOR OBTAINING AND RETAINING AN ADULT ORIENTED BUSINESS PERMIT. WHEREAS, the City Council incorporates by reference its recitals to Ordinance Nos. 96 -5 and Resolution No. 94 -11 herein as if set forth in full; and WHEREAS, the experiences of the City of Newport Beach and Anaheim demonstrate that establishments that provide live nude entertainment create quantitatively and qualitatively worse secondary effects than Adult Oriented Businesses that provide live erotic entertainment where the Performers are at least clothed in attire commonly referred to as pasties and a g- string; and WHEREAS, in Barns 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 Oriented Businesses, in part due to the secondary effects associated with such public nudity in Adult Oriented Businesses which secondary effects include, but are not limited to the increase in prostitution, increase in sexual assaults, increase in spread of sexually transmitted diseases and the increase in criminal activity. NOW THEREFORE, the City Council of the City of Newport Beach does hereby ordain that certain Newport Beach Municipal Code sections are amended to read as follows: SECTION 1: Section 5.28.010 of Chapter 5.28 is amended to read as follows: 5.28.010 Definitions Certain words or phrases used in this chapter are defined as follows: "City manager" means the City Manager for the City of Newport Beach or his or her designee. "Entertainment" means any act, play, burlesque show, revue, pantomime, cabaret, fashion or style show, scene, dance, song, song and dance act, or instrumental music participated in by one or more employees, guests, customers or any other person or persons. 1 1. The following is included in the term "entertainment': The presence of any performer, dancer, employee, agent, model or other person, collectively and individuate referred to as "entertainer." in any place of entertainment who engages in any specified sexual activity (as that term is defined in Section 5.96.010 of this Code) not otherwise prohibited by local, State or Federal law, or who exposes any specified anatomical part (as that term is defined in Section 5.96.010) not otherwise prohibited by local, State or Federal law, or who performs in attire commonly referred to as pasties or a G- string, or any other opaque covering which does not expose the areola or nipples of the female breast, and while covering the natal cleft and pubic area covers less than one inch on either side of the entire length of the natal cleft and two inches across the pubic area. "Individual viewing areas" means viewing areas such as booths, cubicles, rooms or stalls where live entertainment is performed and which are less than one hundred fifty (150) square feet of floor space. "Owner" or "permit holder" or "permittee" means any of the following: 1. A sole proprietor or individual(s) who own or operate a place of entertainment; 2. All general partners of a partnership which owns or operates a place of entertainment; 3. All persons who hold a controlling interest in a corporation, or other limited liability entity which owns or operates a place of entertainment. 'Permit' means any permit issued pursuant to this chapter. 'Place of entertainment' means any business establishment or concern open to members of the public, with or without charge, in which entertainment is offered or performed. SECTION 2: Section 5.28.041 of Chapter 5.28 is amended to read as follows: 5.28.041 Additional Regulations. The following regulations shall apply to all entertainment described in Section 5.28.010(1)(a} 2 GA. If the place of entertainment is licensed to serve alcoholic beverages, the permittee shall abide by the rules and regulations set forth by the California Department of Alcoholic Beverage Control. 8B. No person shall perform for patrons any entertainment described in Section 5.28.010(1)(a) except upon a stage at least eighteen (18) inches above the level of the floor which is separated by a distance of at least six feet from the nearest area occupied by patrons, and no patron shall be permitted within six feet of the stage while the stage is occupied by an entertainer. This subsection shall not apply to individual viewing areas where the stage is completely separated from the viewing area, floor to ceiling, by plexiglass or other clear permanent barrier. €C. Stage or entertainment areas shall not be open to view from outside the premises. D. Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance /exit to the business. GE. No exterior door or window shall be propped or kept open at any time during hours of operation; any exterior windows shall be covered with opaque covering at all times. #F. No person under the age of eighteen (18) years shall be permitted within the premises at any time during hours of operation. JG. The premises shall provide separated dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use. 44H. The permittee shall provide an entrance /exit to the premises for entertainers which is separate from the entrance /exit used by patrons. 61. No entertainer shall have physical contact with any patron and no patron shall have physical contact with any entertainer while on the premises. 9 11101111 M- -J" JG. The premises shall provide separated dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use. 44H. The permittee shall provide an entrance /exit to the premises for entertainers which is separate from the entrance /exit used by patrons. 61. No entertainer shall have physical contact with any patron and no patron shall have physical contact with any entertainer while on the premises. 9 MJ. All areas of the place of entertainment accessible to patrons shall be illuminated at least to the extent of two foot - candles, minimally maintained and evenly distributed at ground level. NK. Individual viewing areas shall be operated and maintained without any hole or other opening or means of direct communication or visual or physical access between the interior space of two or more individual viewing areas. QL. No individual viewing area may be. occupied by more than one person at any one time. RM. All individual viewing areas shall be physically arranged in such a manner that the entire interior portion of the individual viewing area is visible from aisles and public areas of the premises. Visibility into the individual viewing rooms shall not be blocked or obscured by doors, curtains, partitions, drapes, or any other obstruction whatsoever. QN. No patron, guest or invitee shall directly pay or give any gratuity to any entertainer n and no I ndol shall rnli Git aRy pay atuity fFGPA dar�er�eFfc�er, era�ee�• ^. aay patferr entertainer shall accept direct payment or rp atuity from any patron. ISO. No owner or other person with managerial control over an adult- oriented business (as that term is defined in Section 5.96.010 of this Code) shall permit any person on the premises of the adult- oriented business to engage in a live showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, and /or the female breasts with less than a fully opaque covering over any part of the nipple or areola and /or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specific anatomical part required to be covered. �'Ir.� - - - ._ . . SECTION 3: Section 5.28.090 of Chapter 5.28 of the Municipal Code is hereby amended to read as follows: Cl The provisions of this chapter shall apply prospectively and shall not operate to revoke any valid live entertainment permit in effect as of the date of the ordinance codified in this chapter. The provisions of this chapter shall not be deemed to require an entertainment permit for the following: . A. For the use of a radio, record player, juke box or television receiver in any establishment; B. For the use of a nonelectronic piano or organ in any establishment; b` Cer en +e.rFninmen+ yided Fer mberc. neJ their PC. For entertainment conducted pursuant to a permit issued under Chapter 5.10 of this code. SECTION 4: Section 5.28.110 of Chapter 5.28 of the Municipal Code is hereby amended to read as follows: 5.28.110 Public Nuisance. Notwithstanding any other provision of this Code, a violation of the provisions of this chapter shall not constitute a misdemeanor or infraction, but shall be enforced by appropriate action filed in the Superior Court. A violation of this chapter, or any provision of this chapter is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. -' v /C\ shall he +hm nb. the r ....+'e... of the en+er+n'n h en+ nermi+ issued 'n+ +e. this ..hnn+er and the r e.n+'n nF the adult a n+erl hU r. SECTION 5: Section 5.96.010 of Chapter 5.96 of the Municipal Code is hereby amended to add the following definition to appear in its appropriate alphabetical order to read as follows: 5.96.010 Definitions. "Entertainer" means any person who dances models entertains. and /or performs Specified Sexual Activities or displays Specified Anatomical parts in the an Adult Oriented Business. 'c1 SECTION 6: Section 5.96.025 of Chapter 5.96 is amended to read as follows: The City Manager shall issue an adult- oriented business permit within fifteen (15) days of receipt of a complete application if he /she finds that the application fully complies with the findings /requirements of this section. The decision of the City Manager to issue or deny a permit shall be final. The City Manager shall take all lawful steps to insure that any applicant whose permit has been denied pursuant to this section shall be afforded prompt judicial review of the City Manager's decision to deny the permit. A. The adult- oriented business is located in an approved zoning district in compliance with zoning and location requirements of Chapter 20.88 of this Code.' ' "The distance limitations contained in Section 20.88.020 subsection (B) are inapplicable if approved residential use or district, religious institution, public beach or park, school or city facility locates or seeks permission to locate within the prescribed distance of a proposed adult- oriented business after the application for the adult- oriented business has been submitted." B. The adult- oriented business is not located completely or partially within any mobile structure or pushcart. C. The adult- oriented business shall not stage any special events, promotions, festivals, concerts or similar events which would increase the demand for parking beyond the approved number of spaces for the particular use. D. The adult- oriented business shall not conduct any massage, acupuncture, tattooing, acupressure, fortune- telling or escort services on the premises. E. The adult- oriented business provides a security system that visually records and monitors all parking lot areas. All indoor areas of the adult- oriented business shall be open to public view at all times with the exception of restroom facilities. "Accessible to the public" shall include but not be limited to those areas which are only accessible to members of the public who pay a fee and /orjoin a private club or organization. F. The adult- oriented business complies with the City's sign regulations. G. The adult- oriented business complies with the development and design requirements of the zone in which it is to be located for the specific underlying use. H. The adult- oriented business shall not display any sexually oriented material or sexually oriented merchandise which would be visible from any location outside the adult- oriented business. 0 I. The adult- oriented business shall not allow admittance to any person under the age of eighteen (18) if no liquor is served, or under the age of twenty -one (21) if liquor is served. J. The adult- oriented business will not operate between the hours of two a.m. and seven a.m. K. Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, of the adult- oriented business have been found guilty within the past two years of a misdemeanor or felony classified by the state as a sex - related offense and have not violated any of the provisions of an adult- oriented business permit or similar permit or license in any City, County, Territory or State. L. The adult- oriented business provides separate restroom facilities for male and female patrons. The restrooms shall be free from sexually oriented materials and sexually oriented merchandise. Only one person shall be allowed in the restroom at any time, unless otherwise required by law, in which case the adult- oriented business shall employ a restroom attendant who shall be present in the restroom during operating hours who shall prevent any person(s) from engaging in any specified sexual activities within the restroom. M. The interior of the adult- oriented business is configured such that there is an unobstructed view of every public area of the premises, including but not limited to, the interior of all individual viewing areas, from a manager's station which is no larger than thirty -two (32) square feet of floor area with no single dimension being greater than eight feet in a public portion of the establishment. No public area, including but not limited to, the interior of any individual viewing area, shall be obscured by any door, curtain, wall, two -way mirror or other device which would prohibit a person from seeing into the interior of the individual viewing area from the manager's station. A manager shall be stationed in the manager's station at all times the business is in operation or open to the public in order to enforce all rules and regulations. No individual viewing area shall be designed or operated to permit occupancy of more than one person at a time. "Individual viewing area" shall mean any area designed for occupancy of one person for the purpose of viewing live performances, pictures, movies, videos or other presentations. To the extent this provision is inconsistent with any other provision of this code regulating the interior arrangement of adult- oriented businesses this provision shall control. N. All areas of the adult- oriented business shall be illuminated at a minimum of 2.0 foot candle, minimally maintained and evenly distributed at ground level. O. The individual viewing areas of the adult- oriented business shall be operated and maintained with no holes, openings or other means 7 of direct visual or physical access between the interior space of two or more individual viewing areas. P. The adult- oriented business complies with the noise element of the general plan, interior and exterior noise standards and any mitigation measures necessary to reduce the project's noise impacts to the City's articulated noise standard. Q. No live entertainment, as that term is defined in Section 5.28.010 of this Code, shall be provided without first obtaining a permit -pursuant to Chapter 5.28 of this Code. R. No building, premises, structure, or other facility shall be permitted to contain more than one type of adult- oriented business as such types of adult- oriented business are defined in Section 5.96.010. For the purposes of this section, the catchall phrase "adult- oriented business" shall not be considered a single type of adult- oriented business. S. No individual viewing area may be occupied by more than one person at any one time. T. Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance /exit to the business. No exterior door or window shall be propped or kept open at any time during hours of operation; any exterior windows shall be covered with opaque covering at all times. U. No owner or other person with managerial control over an adult- oriented business (as that terrR is defipied iR SeGti9R 5.96.940) WhiGh theatFiGal , shall permit any person on the premises of the adult- oriented business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, and /or the female breasts with less than a fully opaque covering over any part of the nipple or areola and /or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specific anatomical part required to be covered. 0 W NO Mt=_ - - ION W 0 V. No operator, entertainer, employee or agent of an adult oriented business providinq live entertainment shall permit to be performed, offer to perform or perform sexual intercourse oral or anal copulation, fondling or physical stimulation of either clothed or unclothed human genitals. pubic regions, buttocks or female breasts with any patron. W. No operator, entertainer or employee or agent of an adult oriented business shall permit any patron to touch caress or fondle the clothed or unclothed breasts, buttocks, anus or genitals of any operator, entertainer, employee or agent of an adult oriented business providing live entertainment or permit any entertainer, operator. employee or agent to touch, caress or fondle the clothed or unclothed breasts, buttocks anus, genitals of any patron. X. The place of entertainment will provide separate restroom facilities for male and female patrons. The restrooms will be free from sexually oriented materials and sexually oriented merchandise as those terms are defined in Chapter 5.96 of the Newport Beach Municipal Code. Only one person will be allowed in the restroom at any time, unless otherwise required by law, in which case the adult oriented business will employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant will insure that no person of the opposite sex is permitted in the restroom, that not more than one person is permitted to enter a restroom stall, and with the exception of urination and excretion and the necessary disrobing associated with the aforementioned bodily functions, that no person engages in any specified sexual activity in the public portion of the restroom. SECTION 7: Section 5.96.050 of Chapter 5.96 is amended to read as follows: Any establishment operated, conducted or maintained contrary to the provisions of this chapter is unlawful and a public nuisance, and the City Attorney may commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof in the manner provided by law, and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such adult- oriented business and restrain and enjoin any person from operating, conducting or maintaining such an establishment contrary to the provisions of this chapter. reveGatieq of the enttaiat=eRtpeFFAit isGued puFswaRt te Chapter 9 78 SECTION 8: Section 10.54.010 of Chapter 10.54 of the Municipal Code is hereby amended to read as follows: 10.54.010 Intent and Purpose. The intent and purpose of this chapter is to guarantee that the parks, playgrounds and beaches owned, operated and maintained by the City of Newport Beach are operated and maintained for the use, benefit, recreation and enjoyment of all citizens and residents of the City as well as to eliminate, to the greatest extent possible, the secondary effects associated with the presentation of nudity in adult- oriented establishments. The City Council finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said parks, playgrounds and beaches be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of said parks, playgrounds and beaches can only be obtained through imposition of regulations regarding activities thereon; the periods of some persons utilizing said parks, playgrounds and beaches by appearing thereon without clothing and with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said parks, playgrounds and beaches by causing many persons to leave and others not to use said parks, playgrounds and beaches; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said parks, playgrounds and beaches and public safety personnel who are diverted from fulfilling their primary obligation to protect the health, safety and welfare of the public at large; that the presence of persons who are unclothed and exposed to public view in or on public rights -of -way, parks, playgrounds and beaches, or on any private property open to public view from public parks, playgrounds, beaches or other public ways tends to discourage the use and enjoyment of said public parks, playgrounds, beaches and public ways of the City, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said public parks, playgrounds, beaches and places and who are unwillingly exposed to such conduct; that the presentation of nude entertainment in adult - oriented business establishments results in secondary effects which include the proliferation of prostitution, the increase in sexual assaults, and increase in other crimes; effests; and, based upon the foregoing findings, this chapter will protect the public health, safety and welfare. SECTION 9: Subsection B of Section 10.54.030 of Chapter 10.54 of the Municipal Code is hereby amended to read as follows: 10.54.030 Exemptions. This chapter shall not apply to children under the age of ten years.-. 10 SECTION 10: The deletion of Section 5.28.090(C) in Section 3 of this Ordinance shall only apply to new businesses operating as private clubs. All private clubs where admission is not open to the public, lawfully in existence as of the date of adoption of this ordinance shall remain exempt from the provision of Section 5.28. The City Council finds that all other amendments adopted by this ordinance are declarative of existing law. SECTION 11: That if any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, 'subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 12: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the day of 1 1999, and adopted on the day of 1999, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT, COUNCILMEMBERS MAYOR ATTEST: CITY CLERK F:\ cat\ shared \OrdinanceWdult \5 - 28810- 54 \010699.doc 11 Meeting Date: January 11, 1999 Agenda Item No.: 9 Subject: ORDINANCE NO. 98 -27 PERTAINING TO THE FEEDING OF WILD BIRDS AND MARINE LIFE. ALSO refer to City Council Agenda Packet for the Meeting of December 14, 1998, ITEM NO. ¢ for the Original Report or Backup Information on this item. Thank you!