HomeMy WebLinkAbout07 - Amendments to Chapters 5.28, 5.96 and 10.54 of the NBMC for Obtaining and Retaining an Adult Oriented Business PermitJANUARY 1999
AGENDA ITEM N 8
CITY OF NEWPORT BEACH CO CR AGENDA
N ®o
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: XusersXcatXshared \CCmemoWdult5- 28 &10- 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.
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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)(4}:
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5. PIG GperatGF, antei4ai„eF GF empleyee of a plane —6f
eRteoaiRment shall eRG9UFage er aera.i+ a .. ner^en n nen +he ar ....^___ to
tog ^Gh,,- ^oare6G, -ors, ale -the breasts, '26M9&s, aRW6 er genitals of and
o+o GR.
SA. 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.
QB. 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.
a 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.
6E. 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.
The pla of aa+e.ia .+..hall waiRtaiR sepaFate e^+rearR
employees. Male a+ra and empleyee6 shall be ahih'+ed fre ^'nn
thP— va+raa...a fer females Marl females a+reR ..d employees 6--hall he
nPFGhibited from a the re^ +rae a... fa. a.alen nn+ +e earn au+ the
duties
F ' + 1 F fhe vo +rea... far: l' +'o
�- ai,-- re�M„-- rn� rzeA= ;s2=Rd Gl t .
RestFee ., shall n + +..i.. +ale.: it +her e+ien hire
^ a- arrter-oerrtcrtrr-rcrcv�^or^vn -r,v =: cv= R�"r-errrcriTrvrrvrr-prvlcrrc a�
JG. The premises shall provide separated dressing room
facilities for entertainers which are exclusively dedicated to the
entertainers' use.
KH. 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.
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W. 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.
WK. 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 4e,,,, daR l^ ^ ^• FRed l and no
r ^;r,�:�� �� - .,,oar
aRY per, entertainer shall accept direct payment or gratuity from any
patron.
€Z:O. 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)
deveted to thew!r',eal pew,. Q.,Ges, 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.
1_ 1: - M77-_ ---- ----
MIN"INN 11'
SECTION 3: Section 5.28.090 of Chapter 5.28 of the Municipal
Code is hereby amended to read as follows:
Ll
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;
BC. 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.
' Rt tG this ehapter and the r Gatinn Gf the AGAIJi .. ..Mll L... i....n.
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.
E
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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 /or join 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.
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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
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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 5.96.919) WhiGh
is not a theate. GORGeFt hall n mile. establishment n .ily .devoted to
theatFieel neFfe..nnn ^e°, 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.
V. PIG ewaer eF otter
� zp v re with . al n Rt FG! ,
adult eFie tee buei e vv (asm teFm io -defined iR Se ti 596 049
) whiGh
ti,
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V No operator, entertainer, employee or agent of an adult
oriented business providing 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 providinq live
entertainment or permit any entertainer, operator. employee or agent to
touch caress or fondle the clothed or unclothed breasts, buttocks, anus,
genitals of anv 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 anv 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.
bUGiReGG rr.'i ed ni in this nhapteF nn.i the
ni'n of th P- ninh.. ..i n m'i ' nd n nt in Ghapinr 5 28
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;
huninesG estahlishmeRtG tends 1n m'1 . e the o iGte Rne ni S nh c GRdani
effects; —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.--.
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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
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