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HomeMy WebLinkAbout09 - NBMC 5.96 - Adult Entertainment EstablishmentsCity Council Meeting November 14, 2000 -- REVISED — Agenda Item # 9 ORDINANCE NO. 2000 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING CHAPTER 6.96 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO ADULT ENTERTAINMENT ESTABLISHMENTS. WHEREAS, the City is empowered to enact regulatory ordinances protecting and promoting the general welfare, health, and safety of the citizens of the City of Newport Beach pursuant to its Charter and the Constitution and general laws of the State of California; and WHEREAS, the City Council has adopted Ordinance 94 -27 which added Chapter 5.96 to the Newport Beach Municipal Code to provide for licensing and regulation of adult entertainment establishments, including establishments which provide live topless, nude, and /or sexually oriented entertainment; and WHEREAS, in adopting Ordinance 94 -27, the City Council has found that businesses which provide sexually oriented entertainment, if unregulated will cause an increase in criminal activities and other negative secondary impacts in surrounding areas; and WHEREAS, adult businesses which offer live topless, nude, or sexually oriented entertainment may be used by customers for the purpose of engaging in certain illegal sexual activity or sexual acts, and the potential for that illegal activity may be minimized by regulations which maintain a distance or barrier between nude or partially nude performs and patrons, prohibit patrons from directly paying performers, and provide for public view of all rooms or areas where performances are to be conducted; and WHEREAS, regulations in Chapter 5.96 were adopted to minimize the secondary negative impacts including the potential for illegal sexual activity, such as prostitution and lewd conduct and thereby reduce the demand on public safety and law enforcement and the potential for the involvement of organized crime in adult businesses; and to minimize illegal activity and conduct which could cause the transmission of bodily fluids and/or sexually transmitted diseases such as AIDS, and syphillis, and thereby preserve and protect the health, safety, and welfare of Newport Beach residents and visitors; and WHEREAS, a recent decision of the Federal Eleventh Circuit Court of Appeals has found that a forty -five day time period to approve or deny an application was reasonable, and, unless an applicant is allowed to begin operating when the City fails to make a decision on the application within the time limit specified the ordinance is unconstitutional. WHEREAS, adoption of this Ordinance is of urgent necessity because the City Council desires to have its ordinances comply with the Constitution and maintain legally enforceable ordinances and regulations that will reduce the potential for negative secondary impacts of adult oriented businesses within the City of Newport Beach; and WHEREAS, it is not the intent of the City in adopting this Ordinance to enact regulations which constitute a prior restraint on speech, but rather to enact content neutral ordinances which address the legitimate concerns relating to the secondary effects adult entertainment establishments may have on the City. WHEREAS, City Council finds that public peace, health and safety are jeopardized by being forced to suffer the known secondary effects of adult businesses due to a potential judicial decision to enjoin City's otherwise constitutional regulations for lack of providing an applicant the opportunity to begin operating where the City has failed to make a decision on the application within the time limit specified. NOW THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: SECTION 1: Section 5.96.025 of Chapter 5.96 is hereby amended to read as follows: "5.96.025. Application /Findings /Requirements. The City Manager shall issue an adult- oriented business permit within €i#eea -(�a forty -five 45 days of receipt of a complete application if he /she finds that the application fully complies with the findings /requirements of this section. If the City Manager has not made a decision within forty -five (45) days of receipt of a complete application the applicant shall be permitted to begin operating the establishment for which a permit is sought, unless and until the Cif Manager notifies the applicant of a denial of the application and states the reason(s) for the denial. A complete application shall consist of all sections of the written application answered with requested information accompanied by plans showing how the business intends to comply with the requirements of this chapter and applicable requirements of Chapter 5.28. 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. 1 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. 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 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 shall permit any person on the premises of 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. No operator, entertainer, employee or agent of an adult- oriented business providing live entertainment shall permit to be preformed, 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 clothes or unclothed breast, 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. (Ord. 1998: Ord. 98 -6 § 2, 1998: Ord (part), 1994) 9902 §6, 1999: Ord. 98 -23 § 1, 96 -5 § 6, 1996: Ord. 94 -27 § 1 SECTION 2: 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 or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 3: 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 of the City, and it shall be effective SeptffAbeF 4, thirt y as after adoption. SECTION 4: This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of , and adopted on the _ day of by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBER zo ATTEST: CITY CLERK %Imis_l \syskusers\ cat% sharedlordinanceladuM .96.025ord2000.doc • R CITY OF NEWPORT BEACH CITY ATTORNEY'S OFFICE TO: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Robin L. Clauson, Assistant City Attorney RE: MODIFICATION TO ADULT ENTERTAINMENT ORDINANCE BACKGROUND October _4, 2000 Agenda Item No. a A recent Federal 11"' Circuit Court of Appeal opinion concerning regulations of Adult Entertainment Businesses ruled that: 1. A forty -five day time frame within which the City was to approve or deny an application was reasonable; and 2. Unless an applicant is allowed to begin operating when the City fails to make a decision on the application within the time limit specified, the ordinance is unconstitutional. Our current ordinance provides for a fifteen day time limit to process the application. It does not have the language deemed necessary by the court to allow an applicant to operate if we do not make a decision in a timely manner. The proposed changes to Municipal Code Section 5.96.025 are intended to comply with the courts ruling by allowing 45 days to review an application, and providing for automatic operation if we fail to make a decision. RECOMMENDATION Approve proposed changes to Municipal Code Section 5.96.025 and pass to second reading. J Robin L. Clauson Assistant City Attorney RLC:ml Attachment f: lusers% catlshared \ccmemoladultentord596025.doc ORDINANCE NO. 2000 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING CHAPTER 5.96 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO ADULT ENTERTAINMENT ESTABLISHMENTS. WHEREAS, the City is empowered to enact regulatory ordinances protecting and promoting the general welfare, health, and safety of the citizens of the City of Newport Beach pursuant to its Charter and the Constitution and general laws of the State of California; and WHEREAS, the City Council has adopted Ordinance 94 -27 which added Chapter 5.96 to the Newport Beach Municipal Code to provide for licensing and regulation of adult entertainment establishments, including establishments which provide live topless, nude, and/or sexually oriented entertainment; and WHEREAS, in adopting Ordinance 94 -27, the City Council has found that businesses which provide sexually oriented entertainment, if unregulated will cause an increase in criminal activities and other negative secondary impacts in surrounding areas; and WHEREAS, adult businesses which offer live topless, nude, or sexually oriented entertainment may be used by customers for the purpose of engaging in certain illegal sexual activity or sexual acts, and the potential for that illegal activity may be minimized by regulations which maintain a distance or barrier between nude or partially nude performs and patrons, prohibit patrons from directly paying performers, and provide for public view of all rooms or areas where performances are to be conducted; and 9 0 WHEREAS, regulations in Chapter 5.96 were adopted to minimize the secondary negative impacts including the potential for illegal sexual activity, such as prostitution and lewd conduct and thereby reduce the demand on public safety and law enforcement and the potential for the involvement of organized crime in adult businesses; and to minimize illegal activity and conduct which could cause the transmission of bodily fluids and /or sexually transmitted diseases such as AIDS, and syphillis, and thereby preserve and protect the health, safety, and welfare of Newport Beach residents and visitors; and WHEREAS, a recent decision of the Federal Eleventh Circuit Court of Appeals has found that a forty-five day time period to approve or deny an application was reasonable, and, unless an applicant is allowed to begin operating when the City fails to make a decision on the application within the time limit specified the ordinance is unconstitutional. WHEREAS, adoption of this Ordinance is of urgent necessity because the City Council desires to have its ordinances comply with the Constitution and maintain legally enforceable ordinances and regulations that will reduce the potential for negative secondary impacts of adult oriented businesses within the City of Newport Beach; and WHEREAS, it is not the intent of the City in adopting this Ordinance to enact regulations which constitute a prior restraint on speech, but rather to enact content neutral ordinances which address the legitimate concerns relating to the secondary effects adult entertainment establishments may have on the City. WHEREAS, City Council finds that public peace, health and safety are jeopardized by being forced to suffer the known secondary effects of adult businesses due to a potential judicial decision to enjoin City's otherwise constitutional regulations for lack of providing an applicant the opportunity to begin operating where the City has failed to make a decision on the application within the time limit specified. NOW THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: SECTION 1: Section 5.96.025 of Chapter 5.96 is hereby amended to read as follows: "5.96.025. Application /Findings /Requirements. The City Manager shall issue an adult- oriented business permit within €fteea -(4-G& -five (45) days of receipt of a complete application if he /she finds that the application fully complies with the findings /requirements of this section. If the City Manager has not made a decision within forty -five (45) days of receipt of a complete application the applicant shall be permitted to begin operating the establishment for which a permit is sought, unless and until the City Manager notifies the applicant of a denial of the application and states the reason(s) for the denial. A complete application shall consist of all sections of the written application answered with requested information accompanied by plans showing how the business intends to comply with the requirements of this chapter and applicable requirements of Chapter 5.28. 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. 0 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. 1 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. 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 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 shall permit any person on the premises of 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. No operator, entertainer, employee or agent of an adult- oriented business providing live entertainment shall permit to be preformed, 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 clothes or unclothed breast, 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. (Ord. 9902 §6, 1999: Ord. 98 -23 § 1, 1998: Ord. 98 -6 § 2, 1998: Ord. 96 -5 § 6, 1996: Ord. 94 -27 § 1 (part), 1994) SECTION 2: 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 or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 3: 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 of the City, and it shall be effective September 1, 2000. SECTION 4: This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the _ day of , and adopted on the _ day of by the following vote, to wit: AYES, COUNCILMEMBERS. NOES, COUNCILMEMBERS ABSENT COUNCILMEMBER LU ATTEST: CITY CLERK 0 0 \l nis_l �sysluserslcat'sharedlordinance ladultl5.96.025ord2000.doc 0