HomeMy WebLinkAbout95-17 - Amending Chapter 5.28 of the Newport Beach Municipal Code Relating to Entertainment EstablishmentsORDINANCE NO. 95 -17
AN 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
WHEREAS, the regulations in this ordinance will minimize
illegal activity and conduct which could cause the transmission of
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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, the City of Newport Beach believes the following
statements are true, in part based upon its understanding of the
• experiences of cities such as Austin, Texas; Biloxi, Mississippi;
Garden Grove, California; Indianapolis, Indiana; Los Angeles,
California; and Phoenix, Arizona:
A. Crime rates are higher in residential areas surrounding
Adult Oriented Businesses than in commercial or indus-
trial areas surrounding Adult Oriented Businesses;
B. Areas within close proximity of single and multiple
family dwellings should be free of Adult Oriented
Businesses;
C. Adult Oriented Businesses should not be located in areas
of the City which are in the vicinity of residential
uses, religious institutions, parks and schools;
• D. The image of the City of Newport Beach as a pleasant and
attractive place to reside will be adversely affected by
the presence of Adult Oriented Businesses in close
proximity to residential uses, religious institutions,
parks and schools;
E. The existence of Adult Oriented Businesses in close
proximity to residential areas has been shown in some
cities to reduce the property values in those residential
areas;
F. The City Council believes that allowing Adult Oriented
Businesses in those areas permitted in Chapter 20.74 of
the City Code is appropriate because such zones include
ample accessible real estate including acreage in all
• stages of development from raw land to developed,
industrial warehouse, and shopping space that is easily
accessible by freeways, highways and roads;
G. A reasonable regulation of the location of Adult Oriented
Businesses protects the image of the community and its
property values and protects its residents from the
adverse secondary effects of such Adult Oriented
Businesses, while providing those who desire to patronize
Adult Oriented Businesses an opportunity to do so in
appropriate areas within the City;
• H. Regulations for Adult Oriented Businesses should be
developed to prevent deterioration and /or degradation of
the vitality of the community before the problem exists,
rather than waiting for a problem to be created;
I. Adult Oriented Businesses should be regulated by develop-
ing zoning which will separate such land uses from other
incompatible uses;
J. Crime rates significantly increase when Adult Oriented
Businesses are established within close proximity to
other Adult Oriented Businesses;
K. The City Council believes that prohibiting public nudity
will, to some extent, reduce those secondary effects
• shown to be created, in part, by Adult Oriented Busi-
nesses which provide or permit public nudity.
WHEREAS, the aforementioned studies show that sex - related
offenses are included within the category of secondary effects
caused by unregulated or underregulated Adult Oriented Businesses;
and
WHEREAS, the City of Newport Beach believes the following
statements are true, in part, based upon its understanding of the
documents and judicial decisions in the public record established
and submitted with this Ordinance:
A. Evidence indicates that some dancers, models, entertain-
ers, and other persons who publicly perform Specified
Sexual Activities or publicly display Specified Anatom-
ical Parts in Adult Oriented Businesses (as those terms
are defined in Section 5.96.010) (collectively referred
to as "Performers ") have been found to engage in sexual
activities with patrons of Adult Oriented Businesses on
the site of the Adult Oriented Business;
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B. Evidence has demonstrated that Performers employed by
Adult Oriented Businesses have been found to offer and
provide private shows to patrons who, for a price, are
permitted to observe and participate with the Performers
in live sex shows;
• C. Evidence indicates that Performers at Adult Oriented
Businesses have been found to engage in acts of prosti-
tution with patrons of the establishment.
WHEREAS, while the City Council desires to protect the rights
of those who provide adult oriented entertainment, it desires to do
so in a manner which decreases, to the greatest extent feasible,
the undesirable secondary effects associated with such entertain-
ment; and
WHEREAS, in prohibiting public nudity in Adult Oriented
Businesses, the City Council does not intend to proscribe the
communication of erotic messages or any other communicative element
or activity, but rather only to prohibit public nudity due to the
• secondary impacts associated with such public nudity; and
WHEREAS, the City Council also finds that it has a substantial
public interest in preserving order and morality, and that such
interest is furthered by a prohibition on public nudity; and
WHEREAS, while the City Council of the City of Newport Beach
desires to protect the rights conferred by the United States
Constitution to Adult Oriented Businesses, it does so in a manner
that ensures the continued and orderly development of property
within the City and diminishes, to the greatest extent feasible,
those undesirable secondary effects which the aforementioned
studies have shown to be associated with the development and
operation of Adult Oriented Businesses; and
WHEREAS, it is not the intent of the City in adopting this
isOrdinance to suppress any activities protected by the First
Amendment, but rather to enact a content neutral Ordinance which
addresses the secondary effects Adult Oriented Businesses have on
the City; and
WHEREAS, it is not the intent of the City in adopting this
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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 as follows:
SECTION 2: Chapter 5.28 is hereby amended to read in its
entirety as follows:
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.
(a) The following is included in the term "entertainment ":
The presence of any performer, dancer, employee, agent, model
• or other person in any place of entertainment who engages in any
specified sexual activity not otherwise prohibited by local state
or federal law, or performs in attire commonly referred to as
pasties or g- string, or any other opaque covering, which while not
exposing the areola, exposes any portion of the female breast at a
point below the top of the areola and while covering the natal
cleft and pubic area covers less than one inch on either side of
the entire length of the natal cleft and two inches across the
pubic area.
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
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
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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.
S. "Individual viewing areas" shall mean viewing areas such
as booths, cubicles, rooms, or stalls where live entertainment is
• performed and which are less than one hundred fifty (150) square
feet of floor space.
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 11 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:
(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
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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
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.
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S. 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)
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
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):
D
(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 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.
(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
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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.
(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
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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
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
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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 or Chapter 10.54 of this
Code;
5.28.070 Appeals from 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
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
Manager. The City Clerk shall
notify
the
applicant
in writing
•City
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
I
•
•
•
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 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.
(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
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
13
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: 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 5: This ordinance was introduced at a regular
meeting of the City Council of the City of Newport Beach, held on
the 8th day of May , 1995, and adopted on the 22nd day of
May , 1995, by the following vote, to wit:
• AYES, COUNCILMEMBERS EDWARDS, WATT
DEBAY HEDGES, COX, GLOVER, O'NEIL
is
ATTEST:
ill IF i 1
C'° = ' •a
NOES, COUNCILMEMBERS NONE
ABSENT COUNCILMEMBERS NONE
MAYOR _\L9-&Aj _:�)
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