HomeMy WebLinkAbout09/02/1992 V CE MAYOR REFERRAL
(PROPOSED ORDINANCES ONLY)
DATE OF REFERRAL: September 2, 1992
REFERRED TO: Legislative and Litigation Committee
ITEM: AMENDMENT TO THE BAKERSFIELD MUNICIPAL CODE RELATING TO
ADULT ENTERTAINMENT BUSINESSES
BACKUP MATERIAL ATTACHED: Yes
STATUS:
TO COUNCIL COMMITTEE ON
COMMITTEE REPORT NO.
SENT TO COUNCIL ON
PUBLIC HEARING ON
ORDINANCE ADOPTED (DATE)
PROPOSED ORDINANCE CANCELED (DATE)
OTHER
PLEASE RETURN TO JEAN IN THE CITY MANAGER'S OFFICE WHEN COMPLETED.
cc: Honorable Mayor and City Council
City Manager
City Attorney
City Clerk
REFER92.6
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From
SEP 1997.
August 28, 1992 OrWMANAGER'$OF~]OE
TO: VICE-MAYOR KEVIN McDERMOTT
FROM: LAWRENCE M. LUNARDINI, CITY ATTORNEY
SUBJECT: AMENDMENT TO CHAPTER 5.06 OF THE BAKERSFIELD MUNICIPAL
CODE RELATING TO ADULT ENTERTAINMENT BUSINESSES
Please refer the following proposed ordinance amendment
to whichever committee you deem appropriate:
AMENDMENT TO CHAPTER 5.06 RELATING TO ADULT ENTERTAINMENT
BUSINESSES.
Background:
The amendments as set forth in the attached ordinance and
briefly detailed below will resolve issues of concern to the
Federal District Court in the action entitled Deja Vu, et al.
vs. City of Bakersfield. Adoption of the amendments will also
result in a complete dismissal of that lawsuit.
1. Current section 5.06.040 requires all employees of
an adult entertainment establishment to obtain a permit. This
section has been modified to require only the owners and
managerial personnel to obtain a permit. If the business
permit-holder (owner) will be on the premises at all times
while the establishment is open to the public, then it is not
necessary for the manager to obtain a permit. The amended
ordinance also requires adult entertainment businesses
maintain an up-to-date list regarding all employees, which is
made available to police investigators in the event an
employee is suspected of engaging in criminal activity while
on the business premises. This is a compromise issue,
agreeable to all parties.
2. Present section 5.06.060 restricts owners and
employees of adult entertainment businesses to persons 21
years of age or older. The amended ordinance lowers this
restriction to persons of 18 years of age or older, as set
forth in prior chapter 5.06.
Memorandum to Vice-Mayor
Re: Amendment of Adult Entertainment Ordinance
August 28, 1992
3. Present sections 5.06.030 and 5.06.040 mandate an
automatic denial of a permit application if the requisite
findings cannot be made by the city manager within three days
(business permit) or fifteen days (employee permit). These
amended sections will require granting the business or
managerial permit within these time frames if the city manager
is unable to complete the permit process/background check
within those periods of time.
4. Present section 5.06.060 requires the owner of an
adult entertainment business to advise the police department
upon the termination/resignation of an employee so that
his/her employee permit may be revoked. This requirement is
now deleted, as employee permits will not be required in lieu
of the business keeping information available as to all
employees.
5. Present section 5.06.060 forbids operation of adult
entertainment businesses between the hours of 2:00 a.m. to
6:00 a.m. This amended section will remain in effect for the
same time periods Monday through Friday. However, Saturday
and Sunday hours will be extended to 4:00 a.m., with closure
mandated from 4:00 a.m. to 6:00 a.m.
6. Section 5.06.080 is amended to require revocation of
an adult entertainment business permit whenever material
misrepresentations have been included on the application for
the permit and deletes revocation authority for violation of
this ordinance or violation of local state or federal law. As
the business permit has been judicially determined to be a
prior restraint on the exercise of constitutionally protected
speech, revocation of the permit for violation of the
ordinance or any other applicable law is not permitted.
7. I wish to emphasize that the regulations prohibiting
private booths, mandating a six-foot separation between nude
entertainers and patrons, and the prohibition against any
persons under the age of 18 years of age being on the premises
of an adult entertainment business will remain in full force
and effect under the amended ordinance.
MSA: gp
ORDINANCES~ADULTE~T. ~
ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 5.06
OF THE BAKERSFIELD MUNICIPAL CODE
RELATING TO ADULT ENTERTAINMENT
BUSINESSES.
BE IT ORDAINED by the Council of the City of Bakersfield
as follows:
SECTION 1.
Chapter 5.06 of the Bakersfield Municipal Code is hereby
amended to read as follows:
Chapter 5.06
ADULT ENTERTAINMENT BUSINESSES
Sections:
5.06.010 Definitions.
5.06.020 Permits required.
5.06.030 Business permit application - Issuance - Fee.
5.06.040 Managerial permit application - Issuance - Fee.
5.06.050 Renewal.
5.06.060 Regulations.
5.06.070 Abatement.
5.06.080 Revocation.
5.06.090 Appeal.
5.06.010 Definitions.
Whenever used in this chapter, unless a different meaning
clearly appears from the context, the words set forth in this
Section shall have the following meanings:
A. "Adult entertainment business" means any adult
bookstore, adult motion picture theater, adult motion picture or
video arcade, or adult live entertainment theater.
B. "Adult bookstore" means any business selling or
renting books, magazines, periodicals or other printed matter,
photographs, films, motion pictures, slides, tapes, video
cassettes, records or any other form of visual or audio
representation twenty-five percent or more of the stock-in-trade on
display being characterized by an emphasis upon the depiction of
harmful matter.
C. "Adult motion picture theater" means any business
with the capacity of five or more persons where, for any form of
consideration, films, motion pictures, video cassettes, slides, or
similar photographic reproductions in which the predominant
character and theme is the depiction of harmful matter are shown on
any ten or more days in any thirty consecutive day period.
D. "Adult motion picture or video arcade" means any
business wherein coin or token-operated, or electronically,
electrically, or mechanically controlled still or motion picture
machines, projectors, or other image-producing devices are
maintained to show images to four or fewer persons per machine, at
any one time, and where the predominant character or theme of the
images so displayed is depiction of harmful matter.
E. "Adult live entertainment theater" means any
business with the capacity of five or more persons where, for any
form of consideration, live adult entertainment takes place on any
ten or more days in any thirty consecutive day period.
F. "Harmful matter" shall have the same meaning and the
same definition as that word is defined in Chapter 7.6 of Title 9
of Part 1 of the California Penal Code.
G. "Live adult entertainment" means any physical human
body activity, whether performed or engaged in alone or with other
persons, including but not limited to singing, walking, speaking,
dancing, acting, posing, simulating, wrestling or pantomiming, in
which the performer or performers expose to public view without
opaque covering the genitals, vulva, pubis, pubic hair, natal
cleft, buttocks, perineum, anus or anal region; or in which any
female performer exposes to public view without opaque covering any
portion of the breast at or below the upper edge of the areola
thereof.
H. "Operate" means to own, lease (as lessor or lessee),
rent (as landlord, tenant or agent for the purpose of representing
a principal in the management, rental or operation of the property
of such principal), manage, operate, conduct, direct, or be
employed in an adult entertainment business.
I. "Person" means any individual, partnership,
corporation or association of any nature whatsoever.
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5.06.020 Permits required.
A. No person shall own or operate an adult
entertainment business in the city in violation of this chapter or
without having first procured and maintained a valid business
permit from the city manager or his designee. Only one permit per
establishment need be obtained pursuant to this Subsection.
B. Managerial permits are not required except to the
extent that the business permit-holder desires various individuals
to be licensed as manager.
5.06.030 Business permit application - Issuance - Fee.
A. Applications for business permits under this Section
shall be made on forms to be furnished by the city manager or his
designee, shall be signed under penalty of perjury by the applicant
and shall require the following information:
1. The full true name, current mailing address,
title, current telephone number, date of birth, sex, driver's
license number, and social security number of the applicant and of
all persons who will manage the business and all persons having a
financial interest in the business, (except shareholders of a
corporation);
2. The name, mailing address-and location of the
business;
3. The business tax certificate number of the
business; and
4. Prior permits held, the dates held, whether
such permits were ever revoked or suspended and the reasons
therefor.
B. The city manager or his designe~ shall issue a
permit within fifteen days of receipt of the application if he
finds:
1. That the application is complete and truthful;
2. The business for which the application is made,
and the building in which such business is to be conducted, conform
to all federal, state and local laws, including, but not limited to
building codes and zoning ordinances, and be accessible for
inspection by city fire, police and building officials;
3. That a valid business tax certificate has been
issued for this business;
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4. That the applicant is eighteen years of age or
older; and
5. That the applicant has not had a permit, issued
under this Section, revoked in the past three years, unless the
city manager finds that the reasons for such revocation are
unrelated to this application. For the purposes of ~this
Subsection, "applicant, includes all persons designated in
Subsection (A)(1) of this Section.
C. If the city manager or his designee determine that
the applicant has failed to meet,any of the criteria of subsection
B, above, he shall notify the applicant of the decision to deny the
permit. Notice of such decision shall be sent in writing to the
applicant at the mailing address set forth in the application,
within fifteen days of submittal of the application. Failure to so
notify the applicant within the allotted time or failure to make
the findings set forth in subsection B above within the allotted
time shall be deemed a grant of the permit.
D. The applicant shall pay a nonrefundable fee not to
exceed the cost of processing any such application and inspecting
the business as set forth in Section 3.70.040.
5.06.040 Managerial permit application - Issuance - Fee.
A. Applications for managerial permits under this
section shall be made on forms to be furnished by the city manager
or his designee, shall be signed under penalty of perjury by the
applicant and shall require the following information:
1. The full true name, current mailing address,
title, current telephone number, date of birth, sex, driver's
license number and social security number of the applicant;
2. The name, mailing address and location of the
business;
3. The business tax certificate number of the
business; and
4. Prior managerial permits held, the dates held,
and whether such permits were ever revoked or suspended and the
reasons therefor.
B. The city manager or his designee shall issue a
permit within three days of receipt of the application if he finds:
1. That the application is complete and truthful;
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2. That the applicant is eighteen years of age or
older; and
3. That the applicant has not had a managerial
permit, issued under this Section, revoked in the past three years,
unless the city manager finds that the reasons for such revocation
are unrelated to this application.
C. If the city manager or his designee determine that
the applicant has failed to meet any of the criteria of subsection
B, above, he shall notify the applicant of the decision to deny the
permit within three days. Notice ~of such decision shall be sent in
writing to the applicant at the mailing address set forth in the
application, within three days of submittal of the application.
Failure to so notify the applicant within the allotted time or
failure to make the findings set forth in subsection B, above,
within the allotted time, shall be deemed a grant of the permit.
D. The applicant shall pay a nonrefundable fee not to
exceed the cost of processing any such application as set forth in
Section 3.70.040.
E. At time of application, all applicants for a permit
pursuant to this Section shall submit two passport-size photographs
taken within one month of application.
5.06.050 Permit renewal.
A. Ail permits issued under this chapter shall remain
in effect until December 31 of the calendar year of issue, unless
earlier revoked.
B. Valid business permits which have neither expired
nor been revoked shall be renewed by the city manager or his
designee upon payment of the fees set forth in Subsection D of
Section 5,06.030.
C. Valid managerial employee permits which have neither
expired nor been revoked shall be renewed by the city manager or
his designee upon payment of the fees set forth in Subsection D of
Section 5.06.040.
D. Renewal by the city manager or his designee shall
not constitute an admission by the city that the permitted business
or managerial employee is in compliance with state or local law at
time of renewal.
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5.06.060 Regulations.
A. No adult entertainment business shall be operated
unless one of the following persons is present on the premises
whenever such establishment is open for business:
1. The business permit-holder;
2. If the business permit-holder is a corporation,
any of the corporation officers; or
3. If no person from Category 1 or 2, above, is
present, then a person who possesses a valid manager's permit as
issued by the City of Bakersfield.
B. No permit-holder shall operate, or allow to be
operated, any adult entertainment business having any partially or
fully enclosed booth or partially or fully concealed booth. No
exterior door to any adult entertainment business shall be locked
or barred during hours when such business is open to the public,
including booths. Ail booths open to the public shall be visible
from the primary entrance to the hallway or room in which the
booths are located.
C. No person shall enter, be, or remain in any part of
an adult entertainment business while in the possession of,
consuming, using, or under the influence of any alcoholic beverage,
or any drug; and no permit-holder who, with knowledge that a person
is in the possession of, consuming, using or under the influence of
any alcoholic beverage or any drug, or who fails to exercise
reasonable care in ascertaining that a person is in the possession
of, consuming, using or under the influence of any alcoholic
beverage or any drug, shall permit such person to enter, be, or
remain on the premises.
D. No adult entertainment business shall operate, and
no permit-holder shall permit such business to operate, at any time
unless there is displayed in a location clearly visible to the
public a valid business permit to so operate.
E. Any business or managerial employee permit issued
pursuant to this chapter shall be non-transferrable, and shall be
valid only as to the applicant and location provided on the
application for such permit.
F. No business or managerial employee permit shall be
issued for, or used in more than one adult entertainment business.
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G. No harmful matter shall be displayed so as to be
visible from any street, sidewalk, parking area or other area
outside the premises.
H. No person under the age of eighteen years shall
enter, be, or remain in any part of an adult entertainment
business; and no permit-holder who, with knowledge that a person is
a minor, or who fails to exercise reasonable care in ascertaining
the true age of a minor, shall permit such person to enter, be, or
remain on the premises of an adult entertainment business.
I. No adult entertainment business shall be operated in
violation of Chapter 9.12 of the Bakersfield Municipal.Code.
J. Anyone performing live adult entertainment shall
remain no less than six (6) feet away from patrons, customers or
members of the audience of the business.
K. No permit-holder shall permit any physical contact
between a performer of live adult entertainment and any patron,
customer or member of the audience of the adult entertainment
business.
L. No adult entertainment business shall be conducted
or carried on between the hours of 2:00 a.m. and 6:00 a.m. Monday
through Friday. No adult entertainment business shall be conducted
or carried on between the hours of 4:00 a.m. and 6:00 a.m. on
Saturday and Sunday.
M. The adult business permit-holder is expected to
cooperate with police officials to assist them in determining the
identity of any specific individual suspected of illegal activity
in connection with their work at the permit-holder's business. In
that regard, the permit-holder shall not allow anyone to work at
his/her business until they have first supplied the permit-holder
with the following information, which information must be kept by
the permit-holder in a list which must be kept on the premises of
the adult entertainment business at all times. The list must be
readily accessible by the business permit-holder or any other
person designated in 5.06.060(A), and available for inspection by
the police when a request for assistance by the police department
is received for identification of a specific individual or
individuals suspected of having committed an unlawful act(s) while
working at the premises:
1. The individual's legal name.
2. The individual's "stage" name or' any other
nicknames used by such individual while on the premises.
3. The individual's driver's license number.
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4. The individual's Social Security number.
5. The individual's weight, height,-color of eyes,
color of hair and date of birth.
6. Any visible birthmarks or tattoos.
7. The individual's last known home address.
8. Date when the individual began working at the
permittee's business.
9. If the individual is no longer working at the
permittee's business, the last date when the individual worked
there.
It shall be a misdemeanor for either the adult
business permit-holder, a manager, or any employee to knowingly
input or knowingly cause the inputting of false information into
the list described above.
N. The permit-holder shall keep a recent photograph on
file of all persons working at the permit-holder's business. Such
photograph shall be shown to investigating police officers (or to
any percipient witness of an alleged unlawful act) for confirmation
purposes only, when there is reason to believe, from the other data
provided, that the individual in question is in fact the one for
whom the police are inquiring/searching.
O. The police may inspect the list described in
paragraph M, above, while on the premises, but only while engaged
in an investigation of a specific alleged criminal act or acts.
However, they may neither seize nor make a copy or other recording
of such list, except that, if their investigation and discussion
with the business permit-holder or any of the persons identified in
section 5.06.060-A causes them to focus on a particular suspect or
the photograph of that suspect provided by the business or its
representative confirms their identity, then the permit-holder or
other person specified in section 5.06.060-A must provide the
police with a print-out or copy of all of the listed information as
to that particular individual. In the event the description of the
particular suspect matches two or more employees of the business,
the police shall then inform the permit-holder of the date and time
of the alleged illegal activity so as to focus the investigation on
a particular suspect. At this time, the police shall inform the
permit-holder of the identity of the employee and the nature of the
allegation against the identified employee.
P. Any demand for information from the employee list as
set forth in paragraph M, and/or O above, must be made within three
(3) .days from the date when an allegation of unlawful activity
first comes to the attention of city or police officials or the
right to make such demand is waived. If, however, access to this
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list is obtained in violation of this requirement, no use may be
made of any information obtained thereby in any court of law or
equity.
5.06.070 Abatement.
Any adult entertainment business operated contrary to
the provisions of this chapter or local, state or federal law, is
unlawful and a public nuisance. The city attorney may, in addition
to, or in lieu of, prosecuting a criminal action under this chapter
and section 1.40.010, or revoke the permit to operate, commence an
action or actions, proceeding or proceedings for the abatement,
removal and enjoinment thereof in the manner provided by law, and
shall take such other steps and shall apply to such other court or
courts as may have jurisdiction to grant such relief as will abate
or remove such adult entertainment business and restrain and enjoin
any person from operating, conducting, or maintaining an adult
entertainment business contrary to the provisions of this
chapter.
5.06.080 Revocation.
Any permit issued pursuant to this chapter shall be
immediately revoked by the city manager or his designee whenever he
finds that material misrepresentations were made on the
application.
5.06.090 Appeal.
A. Should the applicant be dissatisfied with the
decision of the city manager or his designee to deny or to revoke
a permit, then said applicant may, no later than ten (10) days
after notice of such decision is deposited in the United States
mail, addressed to the applicant or permittee at the address
provided on the application, make written objection to the city
council setting forth the grounds for dissatisfaction, whereupon
the council shall hear said objections at a regular meeting no
later than three (3) weeks following the filing of the objection
with the city clerk. The applicant shall be given written notice
no less than three (3) days prior to said hearing. The council
may, upon said hearing, sustain, suspend or overrule the decision
of the city manager, which decision shall be final and conclusive.
B. Pending the ruling of the council following the
appeal hearing, and for ten (10) days after notice has been
provided to the permit holder of the. council's decision, any
revoked permit shall remain in full force and effect.
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SECTION 2.
This Ordinance shall be posted in accordance with the
Bakersfield Municipal Code and shall become effective thirty (30)
days from and after the date of its passage.
o0o ...........
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I HEREBY CERTIFY that the foregoing Ordinance was passed
and adopted by the Council of the City of Bakersfield at a regular
meeting thereof held on , by the
following vote:
CITY CLERK and Ex Officio Clerk of the
Council of the City of Bakersfield
APPROVED
CLARENCE E. MEDDERS
MAYOR of the City of Bakersfield
APPROVED as to form:
LAWRENCE M. LUNARDINI
CITY ATTORNEY of the City of Bakersfield
MGA:~p
0~cE\~9~
08/27/92
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