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HomeMy WebLinkAboutS23 - Adoption of Emergency Ordinance Pertaining to Amendments to Chapter 5.28 and5.96 of the Newport Beach Municipal CodeSupplemental Agenda: 09 -28 -9E Agenda Item No.: S23 CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY September 28, 1998 TO: Mayor and Members of the City Council FROM: Robin L. Clauson, Assistant City Attorney RE: Adoption of Emergency Ordinance Pertaining to Amendments to Chapter 5.28 and5.96 of the Newport Beach Municipal Code BACKGROUND On September 11, 1998, the Ninth Circuit Federal Court of Appeals issued a decision in the case of Baby Tam and Co., Inc. v. City of Las Vegas (Baby Tam). The Baby Tam decision invalidated the City of Las Vegas' sexually oriented business ordinance as a prior restraint on speech. The Court found that the City of Las Vegas adult permit licensing scheme failed to provide "prompt judicial review." The Court reached this conclusion notwithstanding the fact that Las Vegas' ordinance specifically provided that a license applicant dissatisfied with the City's decision could file a Petition for Writ of Mandamus in the Nevada State Court. ' The Court concluded that the Mandamus procedure did not qualify as "prompt judicial review' because there was not sufficient requirements for a final decision within a reasonable time. Accordingly, staff has prepared an emergency ordinance to protect the City's adult businesses regulations to the greatest extent possible, and in a manner which meets the Constitutional requirements set forth in the Baby Tam case. It is unknown whether California procedures for judicial review would suffer the same problems as were described in the Baby Tam case. The proposed amendments to Chapter 5.28 and 5.96 declare that the City will take all reasonable steps to insure a prompt judicial review in the event of a denial of the permit. We have also provided a clause which would sever the permitting process from the rest of the regulations in the event of a judicial decision that the City's licensing scheme constitutes a prior restraint on speech. Closed Session Memorandum Re: Adoption of Emergency Ordinance (Adult Business) September 28, 1998 Page 2 We are recommending that the Ordinance be adopted as an emergency measure because the City has a very limited period of time (15 days) to review and approve adult oriented business permits. Therefore, without these amendments, an application could be submitted and processed prior to the effective date of an ordinance adopted in the regular course of business. Failure to adopt the proposed Ordinance as an emergency measure could subject the City to the negative secondary impacts of adult oriented businesses that would desire to operate a business in disregard of the City's regulations solely due to an alleged lack of prompt judicial review. This office intends to take all reasonable steps necessary to insure that any potential permit denial receives prompt judicial review to the extent legally possible under the current statutory framework. We also will pursue discussions with the Orange County courts for a change in the local rules and possibly changes in legislation, or rules of the Judicial Council. RECOMMENDATION: Adopt Ordinance No. 98- as an emergency measure to become effective upon adoption (requires at least 5 affirmative votes). ROBIN L. =kOSON Assistant City Attorney RLC:krs FACat \ Shared \CCmemo \SepHAdultOrd.doe ORDINANCE NO. 98- AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING CHAPTER 5.28 AND 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 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 Ninth Circuit Court of Appeals has found that a decision to deny an adult bookstore a license to operate was an unconstitutional prior restraint due to lack of prompt judicial review. In Baby Tam v. City of Las Vegas, the Court found the City of Las Vegas' licensing scheme unenforceable without such prompt judicial review. 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 prompt judicial review of a permit denial. WHEREAS, City Council adopts this Ordinance as an urgency measure pursuant to City Charter Sections 412 and 416; and WHEREAS, City Council intends to take all steps available within existing statutes to provide prompt judicial review as required by the Constitution and, if necessary, promote changes in local court rules or legislation to achieve its goals. 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. Findings /Requirements. 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.1 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 (as that term is defined in Section 5.96.010) which is not a theater, concert hall or similar establishment primarily devoted to theatrical performances, 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. No owner or other person with managerial control over an adult- oriented business (as that term is defined in Section 5.96.010) which is a theater, concert hall or similar establishment primarily devoted to theatrical performances 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. (Ord. 98 -6 § 2, 1998: Ord. 96 -5 § 6, 1996: Ord. 94 -27 § 1 (part), 1994) 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." Section 2: Section 5.28.040 of Chapter 5.28 is hereby amended to read as follows: "5.28.040 Issuance of Permit— Investigation. A. Upon receiving an application for an entertainment permit, the City Manager shall conduct an investigation to determine if the proposed business is in compliance with the provisions of this chapter. The City Manager, shall, within tea business days fifteen days of receipt of a complete permit application, approve and issue the permit if all the requirements of this section have been met. If the City Manager determines that the application does not satisfy the requirements of this chapter, he /she shall deny the application. 1. The applicant shall be served with written notice of the decision. Notice shall be personally served or served by deposit in the United States mail, first class postage prepaid, at the address shown on the application. Service shall be deemed complete upon personal service or in the United States Post Mail. 2. 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. B. Standards for Approval of Permit. The City Manager shall approve and issue an entertainment permit if the application and evidence submitted show that: 1. The place of entertainment is proposed to be located in a zone permitting the proposed use under Title 20 of this Code; 2. If the occupancy limit of that portion of the premises where entertainment is performed is greater than two hundred (200) persons, at least one security guard will be on duty outside the premises, patrolling the grounds and parking areas at all times while the business is open. An additional security guard will be on duty inside the premises if the occupancy exceeds four hundred (400) persons. The security guards shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of this chapter. No security guard required pursuant to this subparagraph shall act as a door person, ticket seller, ticket taker, or admittance person while acting as a security guard; 3. The premises within which the entertainment is located shall provide sufficient sound absorbing insulation so that noise generated inside the premises shall not be audible anywhere on adjacent property or public right - of -way or within any other building or other separate unit within the same building; 4. All entertainment described within Section 5.28.010 complies with the additional regulations in Section 5.28.041; 5. All signage conforms to the standards applicable to the zone; 6. All indoor areas of the place of entertainment in which patrons are permitted and entertainment is presented, shall be arranged in such a manner that the entire interior portion of the viewing area is open and visible from aisles and public areas of the place of entertainment and shall be open to view by management at all times. Visibility shall not be blocked or obscured by doors, curtains, partitions, drapes or any obstructions whatsoever; 7. Every place of entertainment shall have a manager on the premises at all times when entertainment is performed; B. The place of entertainment must not operate or be open between the hours of two a.m. and seven a.m. (Ord. 97 -12 § 3, 1997: Ord. 95 -17 § 2 (part), 1995) Section 3: Should any section, subsection, clause or provision of this Ordinance or Chapter 5.28 or Chapter 5.96 of this Code for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionalitv shall not affect the validity or constitutionality of the remaining portions of this Ordinance, Chapter 5.28 or Chapter 5.96: it is hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase of Chapter 5.28 or Chapter 5.96 would have been prepared, proposed, approved, adopted and/or ratified respective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional including, but not limited to, the permitting requirements contained in Section 5.28.040 and 5.96.025. In the event of a judicial decision invalidating the permit process contained in Chapter 5.28 and Chapter 5.96, any operating business in the City shall be deemed to be operating under a de facto permit. The de facto permit shall remain sublect to the remaining provisions of the Ordinance including, but not limited to. Section 5.96.040 (Permits Non - Transferable; Use Specific); The operational requirements contained in Section 5.96.025 and 5.28.041; Section 5.96.045 (Enforcement and Revocation); and Section 5.96.050 (Violation)." Section 4: There exists a public emergency requiring this Ordinance be introduced and adopted on the same date as its introduction and shall take effect on September 28,1998. Section 5: This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 28th day of September, 1998, and adopted on the 28th day of September, 1998, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBER MAYOR ATTEST: CITY CLERK F: \Cal \Shared \Ordi na nce\Adull\5- 96.doc