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HomeMy WebLinkAbout94-7 - Amending Chapter 5.28 of the Newport Beach Municipal Code Relating to Entertainment EstablishmentsORDINANCE NO. 94 -7 AN EMERGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING CHAPTER 5.28 OF THE NEWPORT BEACH MUNICIPAL CODE RELATING TO ENTERTAINMENT ESTABLISHMENTS. • SECTION 1: FINDINGS. The City Council finds and declares as follows: 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 deems it necessary to provide for licensing and regulation of entertainment establishments, including establishments which provide live topless, nude, and /or sexually oriented entertainment;.and WHEREAS, the business which provide topless, nude, and /or • sexually oriented entertainment, if unregulated will cause an increase in criminal activities in surrounding areas, and are conducted with the intention to provide sexual stimulation or sexual gratification to its customers; and WHEREAS, adult businesses which offer live topless, nude, or sexually- oriented entertainment in booths, cubicles, studios and rooms 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 performers 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, regulation in this ordinance will minimize 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 1 is • 0 WHEREAS, the regulations in this ordinance will minimize illegal activity and conduct which could cause the transmission of bodily fluids and /or sexually transmitted diseases such as AIDS, and syphilis, and thereby preserve and protect the health, safety, and welfare of Newport Beach residents and visitors; and WHEREAS, adoption of this ordinance is of urgent necessity because an adult business is planning to open within the City within the next few weeks; this business is currently making tenant improvements; and prompt notice of these regulatory requirements and standards prior to completion of tenant improvements will make it easier for the business to comply with these requirements and avoid any business interruption or loss of income which might occur in the event that changes were required after the business opens; and WHEREAS, adoption of this ordinance is of urgent necessity because the regulations and standards governing nude or semi -nude dancing and performing will minimize and discourage illegal sexual activity in the place of entertainment planning to open within the next few weeks, and the requirements for the provision of security for businesses which offer live entertainment to a large number of people will reduce criminal activity, and the potential for criminal activity, in existing businesses within the City of Newport Beach; and WHEREAS, it is not the intent of the City in adopting this ordinance to suppress any activities protected by the First Amendment, but rather to enact content neutral ordinance which addressees the legitimate concerns relating to the secondary effects entertainment establishments may have on the City. NOW THEREFORE, the City Council of the City of Newport Beach hereby ordains that Chapter 5.28 of the Newport Beach Municipal Code shall be amended in its entirety to read as follows: SECTION 2: 5.28 Live Entertainment Establishments. 5.28.010 Entertainment Defined. 5.28.020 Permit Required. 5.28.030 5.28.035 5.28.040 5.28.041 5.28.050 • 5.28.060 5.28.070 5.28.090 - 5:28.100 5.28.110 Application for Permit. Application Requirements. Issuance of Permit - Investigation. Additional Regulations. Permits Non - Transferable. Revocation of Permit. Appeals form Action of City Manager. Exceptions. Permits and Fees Not Exclusive. Public Nuisance 5.28.010. Definitions. Certain words or phrases used in this Chapter are defined as follows: 1. "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. The following is included in the term "entertainment ": (a) The presence of any performer, dancer, employee, agent, model, or other person in any place of entertainment, unclothed or in such attire or costume as to expose to public view any portion of the genitals, pubic hair, crease of the buttocks, perineum, anus, anal region or pubic hair region of any such person, and /or female performer, dancer, employee or model unclothed or in such attire or costume as to expose to public view any portion of either breast at /or below the top of the areola. (b) The wearing, using, or employing, for exposure to any audience, customer, or invitee, of any device, costume or covering which gives the appearance of, or simulates, the genitals, pubic hair, buttocks, natal cleft, perineum, or areola of the female breast. 2. "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. 3. "Owner" or "permit holder" or "permittee" means any of 3 • • • the following: (a) A sole proprietor. (b) All general partners of a partnership which owns or operates a place of entertainment. (c) All persons who hold a controlling interest in an corporation which owns or operates a place of entertainment. 4. "City Manager" shall mean the City Manager for the City of Newport Beach or his or her designee. 5. Individual viewing areas shall mean viewing areas such as booths, cubicles, rooms, or stalls where live entertainment is performed and which are less than 150 square feet of floor space. 6. "Permit" shall mean any permit issued pursuant to this Chapter. 5.28.020 Permit Required. No person or entity shall operate, or engage in, any business or commercial enterprise which provides entertainment in a restaurant, cafe, night club, bar, coffee house, or other place of entertainment, unless such person has first obtained a permit pursuant to this Chapter. 5.28.030 Application for Permit. Applications for permits shall be filed with the City Manager on forms supplied by the City, and shall be accompanied by a fee established by Resolution of the City Council which shall be no more than necessary to cover the costs of processing and investigation. 5.28.035 Application Requirements. The f o l l o w i n g information shall be submitted to the City Manager by the owner at the time of applying for a permit: 1. A description of all proposed entertainment business activities and anticipated occupancy. 2. A site plan describing the building and /or unit proposed for the entertainment establishment and a fully dimensioned interior floor plan. 3. The application shall contain the following information: 4 (a) The owner's name, residence street address, and mailing address, if different, and California drivers license number and any and all aliases; (b) The name under which the entertainment enterprise is to be operated; • (c) The telephone number of the enterprise and the address and legal description of the parcel of land on which the enterprise is located; and, (d) The date on which the owner acquired the enterprise for which the permit is sought, and the date on which the enterprise began or will begin operations at the location for which the permit is sought. 4. A statement under oath that the applicant has personal knowledge of the information contained in the application and that the information contained is true and correct. 5. A statement that the applicant has read and understands the provisions of this Chapter. • 6. A statement whether the applicant previously operated in this or any other county, city or state under an entertainment establishment license /permit or similar business license, and whether the applicant has ever had such a license revoked or suspended and the reason therefore, and the business entity or trade name under which the applicant operated that was subject to the suspension or revocation. 7. If the premises are being rented or leased or being purchased under contract, a copy of such lease or contract shall accompany the application. 5.28.040 A. Issuance of Permit - Investigation. 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 10 business days of filing a complete permit application, approve and issue the permit if all the requirements of this Section have been met. If the City Manager GO determines that the application does not satisfy the requirements of this Chapter, he /she shall deny the application. 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. - 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 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 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(a) and (b) complies with the additional regulations in Section 5.28.041. zone. 5. All signage conforms to the standards applicable to the 6. All indoor areas of the place of entertainment in which 0 patrons are permitted, except restrooms, will be open to view at all times. 7. Every place of entertainment shall have a manager on the premises at all times when entertainment is performed. 8. The place of entertainment must not operate or be open • between the hours of 2:00 a.m. and 7:00 a.m. 5.28.041 Additional Regulations. - The following regulations shall apply to all entertainment described in Section 5.28.010 (a) and (b): (a) No operator, entertainer, or employee of a place of entertainment shall permit to be performed, offer to perform, perform or allow patrons to perform sexual intercourse, oral or anal copulation, fondling or stimulation of human genitals, pubic region, buttocks, or female breasts. (b) No operator, entertainer or employee of a place of entertainment shall encourage or permit any person upon the premises to touch, caress, or fondle the breasts, buttocks, anus, • or genitals of any other person. (c) 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. (d) No person shall perform for patrons any entertainment described in Section 5.28.010 (a) and (b) 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 (6) feet from the nearest area occupied by patrons, and no patron shall be permitted within six (6) 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. (e) Stage or entertainment areas shall not be open to view from outside the premises. 7 (f) 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. (g) 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. (h) No person under the age of 18 years shall be permitted within the premises at any time during hours of operation. (i) The place of entertainment shall maintain separate restroom facilities for male patrons and employees and female patrons and employees. Male patrons and employees shall be prohibited from using the restrooms for females and female patrons and employees shall be prohibited from using the restrooms for males except to carry out the duties of repair, maintenance and cleaning of the restroom facilities. Restrooms shall not contain television monitors or other motion picture or video projection • recording or reproduction equipment. (j) The premises shall provide separated dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use. (k) The permittee shall provide an entrance /exit to the premises for entertainers which is separate from the entrance /exit used by patrons. (1) No entertainer shall have physical contact with any patron and no patron shall have physical contact with any entertainer while on the premises. (m) All areas of the place of entertainment accessible to patrons shall be illuminated at least to the extent of two foot candle, minimally maintained and evenly distributed at ground level. (n) 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. G (o) No individual viewing area may be occupied by more than one person at any one time. (p) 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. ;..(q) No patron, guest or invitee shall directly pay or give any gratuity to any performer, dancer, employee, or model and no dancer, performer, employee or model shall solicit any pay or gratuity from any patron. 5.28.050 Permits Non - Transferable. No entertainment establishment permit shall be sold, transferred, or assigned by any permit holder, or by operation of law, to any other person, group, partnership, corporation or any other entity, and any such sale, transfer or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of such permit, and such permit shall be thereafter null and void. A permit held by an individual in a corporation or partnership is subject to the same rules of transferability as contained above. Permit shall be valid only for the exact location specified in the permit. 5.28.060 Revocation of Permit. The City Manager may revoke a permit issued under the provisions of this chapter for any of the following reasons: (a) The permittee has ceased to meet the requirements for issuance of permit. (b) The applicant gave materially false, fraudulent or misleading information on the application. (c) Music or noise from the establishment for which the permit was issued interferes with the peace and quiet of the neighborhood. (d) The permit holder is convicted of a felony or misdemeanor W occurring upon, or relating to the premises or lot upon which the place of entertainment is located which offense is classified by the State as an offense involving sexual crime against children, sexual abuse, rape, distribution of obscene material or material harmful to minors, prostitution or pandering, including, but not necessarily limited to the violation of any crime requiring registration under California Penal Code Section 290, or any violation of Penal Code Sections 243.4, 261, 261.5, 264.1, 266, 266a through 266k, inclusive, 267, 286, 286.5, 288, 288a, 311 through 311.10, inclusive, 314, 315, 316 or 647; (e) If, on two or more occasions within a twelve (12) month period, a person or persons has (have) been convicted of a felony or misdemeanor for an offense set forth in subsection (d) above as a result of such person's activity on the premises or property on which the place of entertainment is located, and the person or persons were employees, contractors or agents of the place of entertainment at the time the offenses were committed; • (f) If the permit holder or an employee has knowingly allowed prostitution, or solicitation for prostitution, on the premises; or .(g) The place of entertainment has been operated in violation of any of the requirements of this Chapter; and, 1) if the violation is of a continuous nature, the Business continues to be operated in violation of such provision for more than ten (10) days following the date written notice of such violation is mailed or delivered to the Owner; or, 2) if the violation is of a noncontinuous nature, two (2) or more additional violations of the same provision, or four (4) or more violations of any other of the provision, of this Chapter occur (regardless of whether notice of each individual violation is given to Owner within any twelve (12) month period. 5.28.070 Appeals form Action of City Manager. If an applicant is aggrieved by any action or failure to act upon the part of the City Manager in issuing, failing to issue, suspending or revoking any permit under this Chapter, such applicant may 10 appeal to the City Council by filing with the City Clerk a statement addressed to the City Council setting forth the facts and circumstances regarding the action or failure to act on part of the City Manager. The City Clerk shall notify the applicant in writing of the time and place set for the hearing on his or her appeal. The right to appeal to the City Council from the denial, suspension or revocation of any permit required by the Chapter shall terminate upon the expiration of fifteen (15) days following the deposit of a certified letter in the United States Post Office advising the applicant of the action of the City Manager and of his or her right to appeal such action to the City Council. The hearing shall be held within 20 days of the receipt by City Clerk of the appeal, or at the next regularly scheduled Council Meeting, whichever is sooner. The City Council of the City of Newport Beach may preside over the hearing on appeal or, in the alternative, appoint a hearing officer to conduct the hearing, receive relevant evidence and to • submit to the City Council findings and recommendations to be considered by the City Council of the City of Newport Beach. The City Council of the City of Newport Beach shall render its decision within five (5) days from the date of the hearing or, in the event that a hearing officer has been appointed, within five (5) days on which the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council shall be final. 5.28.090 Exceptions. The provisions of this Ordinance shall apply prospectively and shall not operate to affect or revoke any valid live entertainment permit in effect as of the date of this Ordinance. 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 non - electronic piano or organ in any establishment. 11 (c) For any entertainment provided for member and their guests at a private club where admission is not open to the public. (d) For entertainment conducted or sponsored by any religious organization or by any bona fide non - profit club, society or association, organized or incorporated for benevolent, charitable, dramatic or literary purposes having an established membership and which holds regular meetings, other than such entertainment at regular intervals, when all the proceeds, if any arising from such -1 entertainment are used for the purposes of such club, society or association. 5.28.100 Permits and Fees Not Exclusive. Fees and permits required by this Chapter shall be in addition to any license, permit or fee required under any other Chapter of this Code. 5.28.110 Public Nuisance. Not withstanding 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. SECTION 3: 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 or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 4: As specified in Section 1, there exists a public emergency requiring this ordinance be passed finally on the 12 date of its introduction; therefore, this ordinance shall be passed finally and shall take effect on January 24, 1994. SECTION 5: 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. SECTION 6: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 24th day of January, 1994, and adopted on the 24th day of January, 1994, by the following vote, to wit: CLERK CITY wb /ordin /enterta2.cde: 1/24/94 AYES, COUNCILMEMBERS SANSONE, WATT, TORNER, HART, COX, DEBAY NOES, COUNCILMEMBERS NONE ABSENT COUNCILMEMBERS HEDGES MAY R 13