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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 City Attorney's Office · ~,.. Extension #3721 I TO '~ --- DATE "'~or you~Jinformation R[~iARKS return to me For your information For your handling Let's discuss Sign and return copies Investigate Approval Please Advise Your File 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. - 2 - 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; - 3 - 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; - 4 - 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. - 5 - 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. - 6 - 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. - 7 - 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 -- 8 -- 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. - 9 - 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 ........... - 10 - 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 - 11 -