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HomeMy WebLinkAbout98-6 - Amending Sections 5.96.020, 5.96.025, and 5.96.040 of the Newport Beach Municipal Code Relating to Adult Oriented Business Applications and the Off-Site Presentation of Live, Adult Oriented EntertainmentORDINANCE NO. 98-6 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AMENDING SECTIONS 5.96.020, 5.96.025, and 5.96.040 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO ADULT ORIENTED BUSINESS APPLICATIONS AND THE OFF - SITE PRESENTATION OF LIVE, ADULT ORIENTED ENTERTAINMENT. WHEREAS, the City Council finds that, based upon its experience and the experience of other cities, the provision of off -site live adult entertainment creates significant pernicious secondary effects which include, but are not limited to, the increase in criminal activity at the location at which the off -site live adult entertainment is occurring, which criminal activity includes increased prostitution, sexual assaults, and sexual and non - sexual battery and assault; and WHEREAS, a significant portion of off -site live adult entertainment occurs in residential structures; and • WHEREAS, given the random nature of the locations at which such off -site live adult entertainment occurs, it is impossible to ensure that the locations comply with the requirements this chapter imposes upon adult oriented businesses to reduce those pernicious secondary effects; and WHEREAS, the City enacts this ordinance for the sole purpose of reducing these pernicious secondary effects and not in any way to restrict access to any activity which may be protected by either the United States or California Constitutions; and WHEREAS, the rights of those persons desiring to view live adult entertainment are protected by establishing within the City property zoned in a manner providing for the location of adult oriented businesses presenting live entertainment; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH HEREBY ORDAINS AS FOLLOWS: SECTION 1: Section 5.96.020 of the Newport Beach Municipal Code, entitled "Application Requirements," is hereby amended to read as follows: Section 5.96.020 Application Requirements A. Application submittal. The property owner, or authorized agent of • the property owner, is eligible to request an adult oriented business permit. Applications shall be submitted to the Revenue Division. The following information is required at the time an adult oriented 1 business permit is submitted: • 1. A completed adult oriented business permit application signed by the property owner or authorized representative. 2. A nonrefundable deposit or fee as set forth by ordinance or resolution of the City Council. 3. A letter of justification and diagram or floor plan describing the proposed project and explaining how it complies or will comply with the findings /requirements contained in Section 5.96.025. 4. Signed statement by the applicant verifying the applicant intends to and will comply with all operational requirements of Section 5.96.025. 5. Signed statement that the applicant, and /or the applicant's officers, partners or investors have not had an adult oriented business permit revoked within the previous two (2) years. 6. All other information as required by City of Newport Beach adult oriented business permit information sheet. • B. Determination of Completeness. The City Manager shall determine whether the application contains all the information required by the provisions of this Chapter 5.96. If it is determined that the application is not complete, the applicant shall be notified in writing within ten (10) business days of the date of receipt of the application that the application is not complete and the reasons therefor, including any additional information necessary to render the application complete. The applicant shall have thirty (30) calendar days to submit additional information to render the application complete. Failure to do so within the thirty (30) day period shall render the application void. Within five (5) business days following the receipt of an amended application or supplemental information, the City Manager shall again determine whether the application is complete in accordance with the procedures set forth in this subsection. Evaluation and notification shall occur as provided above until such time as the application is found to be complete. The applicant shall be notified within five (5) days of the date the application is found to be complete. All notices required by this chapter shall be deemed given upon the date they are either deposited in the United States mail or the date upon which personal service of such notice is provided. SECTION 2: Section 5.96.025 of the Newport Beach Municipal Code, entitled "Findings /Requirements," is hereby amended to read in its entirety 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 2 final. • 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. 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. 3 • 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. E 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. • SECTION 3: Section 5.96.040 of the Newport Beach Municipal Code, entitled "Permits Non - Transferable; Use And Location Specific," is hereby amended to read in its entirety as follows: 5 No adult oriented business permit may be sold, transferred, or • assigned by any permittee or by operation of law, to any other person, group, partnership, corporation or any other entity. Any such sale, transfer, or assignment or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the permit and the permit shall be thereafter null and void. An adult oriented business permit held by a corporation or partnership is subject to the same rules of transferability as contained above. Any change in the nature or composition of the adult oriented business from one element of an adult oriented business to another element of an adult oriented business or any increase of ten percent or more of the floor area of the adult oriented business shall also render the permit null and void. An adult oriented business permit shall only be valid for the exact location specified on the permit. No off -site presentations of Entertainment as defined in Section 5.28.010 sub. (1) shall be permitted. SECTION 4: Section 5.96.045 of the Newport Beach Municipal Code, entitled "Enforcement and Revocation," is hereby amended to read as follows: Section 5.96.045 Enforcement and Revocation. A. Inspections. The permittee shall permit officers of the City of • Newport Beach, the County of Orange, and each of their authorized representatives to conduct unscheduled inspections of the premises of the adult - oriented business for the purpose of ensuring compliance with the law at any time the adult- oriented business is open for business or occupied. B. Revocation Grounds. The City Manager may revoke an adult - oriented business permit when he or she discovers that any of the following have occurred. 1. A violation of or failure to comply with any of the finding /requirements contained in Section 5.96.025 has occurred; 2. It is discovered that the application contains incorrect, false or misleading information; 3. The applicant is convicted of any felony or misdemeanor which is classified as a sex or sex- related offense, or has been found to be in violation of the City's zoning ordinance, any violation of the City's massage ordinance, or any violation of any other adult business ordinance of any other City, County or State; • 4. Any person has been convicted of a sex - related offense as a result of his or her activity on the premises of the adult- oriented business; 5. There has occurred on the premises a violation of any provision of 6 Section 5.28.041. • C. Revocation Notice. Upon determining that the grounds for permit revocation exist, the City Manager shall furnish written notice of the proposed revocation to the permittee. Such notice shall summarize the principal reasons for the proposed revocation, shall state that the permittee may appeal the decision within fifteen (15) calendar days of the posting or the postmarked date on the notice. The notice shall be delivered both by posting the notice at the location of the adult- oriented business and by sending the same, certified mail, return receipt requested and postage pre -paid, to the permittee as that name and address appears on the permit. Not later than fifteen (15) calendar days after the latter of the mailing or posting of the notice, the permittee may file an appeal of the City Manager's determination with the City Clerk. If the appeal is filed within fifteen (15) calendar days of the mailing or posting of the notice referenced above, the appeal hearing shall be provided as contained in subsection (D) of this section. D. Appeal. Any person aggrieved by a decision to revoke a permit under this chapter may file an appeal with the City Clerk within ten days of the decision. The request for the appeal shall state the grounds upon which the appeal is based. Upon receipt, the City Clerk shall schedule an appeal hearing before the City Council or an appointed hearing officer and shall provide written • notice of the time, date and location of the hearing to the applicant. The hearing shall be held no later than forty-five (45) days from the date the request for the appeal is received by the City Clerk. The City Council shall determine whether grounds for revocation of the adult- oriented business permit exists and shall render their decision at the conclusion of the hearing or upon recommendation of the hearing unless the applicant otherwise consents to a continuance. E. Reapplication after Revocation. No person, corporation, partnership or member thereof or any other entity may obtain an adult- oriented business permit for two (2) years from the date the order of revocation has been implemented.. SECTION 5: This ordinance is declarative of existing law. SECTION 6: Should any section, subsection, clause, or provision of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. • SECTION 7: 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. 7 This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 13th day of April , 1998, and adopted on • the 27th day of April , 1998, by the following vote, to -wit: AYES, COUNCILMEMBERS THOMSON, DEBAY, O'NEIL, HEDGES, GLOVER, NOYES, MAYOR EDWARDS NOES,COUNCILMEMBERS NONE ABSENT, COUNCILMEMBERS NONE • ATTEST: WV-PI CITY CLERK F: \cat\da\Ordi na nceVAd u ldt \042798. doc • M J 0 L J STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LEILANI V. INES, Deputy City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 98 -6 was duly and regularly introduced before and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 27th day of April, 1998, and that the same was so passed and adopted by the following vote, to wit: Ayes: Thomson, Debay, O'Neil, Hedges, Glover, Noyes, and Mayor Edwards Noes: None Absent: None Abstain: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 28th day of April, 1998. Deputy City Clerk of the City of Newport Beach, California CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LEILANI V. INES, Deputy City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 98 -6 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following date, to wit May 2, 1998. In witness whereof, I have hereunto subscribed my name this 1CA-k day of , 1998. City Clerk of the City of Newport Beach, California