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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: JUDITH V ALLES
Mayor ORIGJiJitL
Subject: Take action on the request ofthe City Planning
Commission for the Mayor and Common Council to
review and reconsider Chapter 5.14 or any provision thereof.
Dep!: MAYOR'S OFFICE
Date: November 13, 2001
Synopsis of Previous Council action'
Prior adoption of City Ordinances resulting in the current provisions set forth in Chapter 5.14
of the San Bernardino Municipal Code.
Recommended motion:
That the Mayor and Common Council direct the City Planning Commissi to decide the appeal
hearing on the denial of entertainment licenses to Manta Management5thers in accordance
with the current provisions of Chapter 5.14, with specific re enc 0 curr t Section 5.14.1200.
of the San Bernardino Municipal Code.
Signature
Contact person: Judith Valles
Phone:
5133
Supporting data attached: Staff Report
Ward:
All
FUNDING REQUIREMENTS:
Amount: None at this time.
Source:
Finance:
Council Notes:
Agenda Item No.
/~
il/l1/d/
STAFF REPORT
Council Meeting Date: November 19. 2001
TO:
FROM:
DATE:
SUBJECT:
Commoo CouociI
Mayor's Office
November 13, 2001
Take actioo 00 the request ofthe City Planning Commission for the Mayor and
Com moo Council to review and reconsider Chapter 5.14 or any provision
thereof.
On November 7, 2001, the City Planning Commission heard oral arguments in the appeal
hearing on the denial of entertainment licenses to Manta Management and others in accordance with
the current provision of Chapter 5.14 of the San Bernardino Municipal Code. A copy of that chapter
is attached to this staff report. The Commission was advised in writing by its legal advisor that the
issue of the constitutionality of Chapter 5.14 of the San Bernardino Municipal Code was not before
them.
At the conclusion of oral argument, the Commission continued the appeal hearing to its
December 4, 2001 meeting in order to ask if the Mayor and Common wished to review and
reconsider Chapter 5.14 or any provision thereof.
The current provisions contained in Chapter 5.14, specifically current Section 5.14.120 D.
are clear and unequivocal: "The Planning Commission shall render its decision within fourteen (14)
days from the date of the hearing. The decision of the Planning Commission shall be final and
conclusive and shall not be subject to appeal to the Mayor and Common Council."
It is not appropriate for the Planning Commission to conduct this appeal hearing without
making a decision, as it is required in Section 5.14.120 D. of the San Bernardino Municipal Code.
It is requested that the City Planning Commission be directed to decide the appeal hearing
on the denial of entertainment licenses to Manta Management and others in accordance with the
current provisions of Chapter 5.14, with specific reference to current Section 5.14.120 D. ofthe San
Bernardino Municipal Code. It is requested that the floor motion be adopted.
attachment
Chapter 5.08
(REPEALED BY MC-294, 8-1-83)
Chapter 5.12
(REPEALED BY MC-1052, 7-19.99; MC-1051, 7-19-99; MC-1050, 7-12-99)
Chapter 5.14
ENTERTAINMENT-DANCES AND ADULT ENTERTAINMENT
Sections:
5,14.010
5.14.020
5.14.030
5,14,040
5.14,050
5,14.060
5,14.070
5.14.080
5.14.090
5,14.100
5.14,110
5,14.120
5,14,130
5.14.140
5.14.150
5,14.160
5,14,010
Definitions
License-Required
License-Application and Fees
Application Requirements
Issue of License-Investigation
Additional Regulations- Adult Entertainment
License-Nontransferable-Posting
License-Fee
License-Duration
Exemptions from filing, processing and license fees
Suspension/Revocation of license
Appeal
Licenses and Fees not Exclusive
Exceptions
Severability
Penalty
Definitions,
For the purpose of this Chapter, certain words and phrases shall be construed
as set forth in this section, unless it is apparent from the context that a different
meaning is intended.
A. "Dine and dance clubs," and "night clubs," mean and include all hotels,
restaurants, cafes, road houses, inns, tavems, bars, or any place open to the
public, wherein or whereat beverages, meals or dinners are served, and where
the public and patrons thereof may dance, or where entertainers may perform.
8. A 'public dance", "dancing club", or "public dance hall" means and includes
any public place open to the public wherein or whereat the public may engage
in dancing, including places and dances where admission thereto is by
membership or other special privilege.
C. "Entertainment" means:
1. Any act, play, review, pantomime, scene, dance act, or song and
dance act, performed by one or more persons, whether or not such
person or persons are compensated for such performance, when the
same is performed at a public dance hall, public dance, dancing club,
dine and dance club or night club; or
[Rev. February 10, 2000]
5-44
2. Any fashion or style show, except
a. When the same is conducted by a nonprofit club, organization
or association, as a part of the social activities of such club,
organization or association to which members of the general
public are not invited; or
b. When the same is conducted by a person as a part of a
commercial business which primarily involves the sale or
manufacture of clothing or wearing apparel.
3. The following is included in the term "entertainment": The presence of
any performer, dancer, employee, agent, model or other person,
collectively and/or individually referred to as "entertainer", in any place
of entertainment as defined in Sections 5.14.010(A) or (8) who
engages in any specified sexual activity (as that term is defined in
Chapter 19.06 of this Code) not otherwise prohibited by local, State or
Federal law, or who exposes any specified anatomical part (as that
term is defined in Chapter 19.06 of this Code) not otherwise prohibited
by local, State or Federal law, or who performs in attire commonly
referred to as pasties or a G-string, or any other opaque covering
which does not expose the areola or nipples of the female breast, 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. Entertainment as described in this subsection
shall be subject to'all regulations as described in Chapter 19.06 of this
Code.
D. "Notice" means written notice, given by personal service upon the addressee,
or, given by United States mail, postage prepaid, addressed to the person to
be notified at his or her last known address. Service of such notice shall be
effective upon the completion of personal service, or upon the placing of the
same in the custody of the United States Postal Service.
E. "License" means a license required and issued pursuant to the provisions of
this Chapter.
5.14.020
License-Required
It is unlawful for any person, firm, corporation or association of persons, to
operate, conduct or carry on any act of entertainment, public dance hall, public dance,
dancing club, dine and dance club or night club, as the same are defined in Section
5.14.010 without first obtaining a license to do so as provided in this Chapter.
5.14.030
License-Application and fees
Any person required to obtain a license pursuant to this Chapter shall file a
written application therefor with the City Clerk 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. .
[Rev. February 10, 2000]
5-45
5.14.040
ADDlication Reauirements
/~
I
The following information shall be submitted to the City Clerk by the owner at
the time of applying for a license:
A. A description of all proposed entertainment business activities and anticipated
occupancy;
B. A site plan describing the building and/or unit proposed for the entertainment
establishment and a fully dimensioned interior floor plan;
C. The application shall contain the following information:
1. The owner's name, residence street address, and mailing address, if
different, and California driver's license number and any and all
aliases,
2. The name under which the entertainment enterprise is to be operated,
3. The telephone number of the enterprise and the address and legal
description of the parcel of land on which the enterprise is located,
4. The date on which the owner acquired the enterprise for which the
license is sought, and the date on which the enterprise began or will
begin operations at the location for which the license is sought, and
5. If the enterprise is owned and/or operated by a corporation, or other
limited liability entity, or association of persons, the name of each
officer and/or director of the corporation, limited liability entity, or
association of persons. If the enterprise is owned and or operated by
a partnership, the name of each general partner of the partnership;
D. A statement under oath that the owner has personal knowledge of the
information contained in the application and the information contained is true
and correct;
E. A statement that the owner has read and understands the provisions of this
chapter.
F. A statement whether the owner previously operated in this or any other
County, City or State under an entertainment establishment license/permit or
similar business license, and whether the owner has ever had a license
revoked or suspended and the reason therefore, and the business entity or
trade name under which the owner operated that was subject to the
suspension or revocation;
G. If the premises are being rented or leased or being purchased under contract,
a copy of such lease or contract shall accompany the application.
5.14.050
Issue of License-Investiaation
A. Upon receipt of an application for an entertainment license, the City Clerk shall
[Rev. February 10, 2000]
5-46
conduct an investigation to determine if the proposed business is in
compliance with the provisions of this chapter. The investigation shall include
forwarding copies of the application to the Police Department, Development
Services and the Fire Department for their own independent investigation.
Each department shall make recommendations as to the issuance or denial
of the license and forward said results to the City Clerk within 30 days of
receipt of the application. The City Clerk, shall, within 45 days of receipt of a
complete permit application, approve and issue the permit if all the
requirements of this section have been met. If the City Clerk determines that
the application does not satisfy the requirements of this chapter, he/she shall
deny the application.
1. 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 deposit in the United States Post Mail.
B. Standards for Approval of License. The City Clerk shall approve and issue an
entertainment license if the application and evidence submitted show that:
1. The operation, as proposed by the applicant, if permitted, would
comply with all applicable laws, including but not limited to the City's
.building, fire, zoning and health regulations; and
2. The applicant has not knowingly made any false, misleading or
fraudulent statement of fact in the license application process, or on
any document required by the City in conjunction therewith.
3. If the occupancy limit of that portion of the premises where
entertainment is performed is greater than two hundred (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
entertainment is provided. An additional security guard will be on duty
inside the premises if the occupancy exceeds four hundred (400)
persons. The security guards shall be charged with preventing
violations of law and enforcing compliance by patrons with the
requirements of the 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. An additional
security guard shall be provided if one security guard is to be utilized
for the purpose of conducting searches on patrons. All security guards
shall be licensed in accordance with Business and Professions Code
~7582, et seq.
4. 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;
5. All entertainment described within Section 5.14.010 complies with the
[Rev. February 10, 2000]
5-47
9.
5,14.060
6.
additional regulations in Section 5.14.060;
All signage conforms to the standards applicable in Title 19 of this
Code;
(
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 two a.m. and eight a.m., however, the restriction herein
imposed applies only to permitting or allowing the public to dance and
to the providing of entertainment of any sort other than mechanical
music between such hours and is not deemed to prevent or make
unlawful the serving of meals or refreshments between such hours;
and
All business activities must take place within the enclosed structures,
unless otherwise permitted by the City.
10.
The City Clerk shall impose conditions prior to approval of an
application which are deemed necessary by the Police Department,
Development Services, and the Fire Department to insure compliance
with the provisions of this Chapter or to protect the public health and
safety. Such conditions shall be limited to the following: hours of
operation, maximum occ;upancy, fire and life safety issues, fire
suppression, exterior signage prohibiting loitering and littering, location
of the business, amount and type of calls for police service in the area,
exterior lighting, existence of pubic telephones and security guards.
Additional Reaulations.
The following regulations shall apply to all entertainment described in Section
5.14.010(C)(3):
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, lap or straddle dancing, 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 lap or straddle dance,
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
licensee 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
5.14.010(C)(3) 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 feet from the
nearest area occupied by patrons, and no patron shall be permitted within six
[Rev. February 10, 2000]
5-48
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 eighteen (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 either looking into or 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 separate dressing room facilities for male and
female entertainers which are exclusively dedicated to the entertainer's use.
K. The licensee shall provide an entrance/exit to the premises for entertainers
which is separate from the entrance/exit used by patrons.
L. 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-candles (measured as units of
illuminance), 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 directly 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,
[Rev. February 10, 2000]
5-49
or any other obstruction whatsoever.
Q. No patron, guest or invitee shall directly payor give any gratuity to any
performer, dancer, employee or model and no dancer, performer, employee
or model shall solicit any payor gratuity from any patron.
R. No owner or other person with managerial control over an Adult Business (as
that term is defined in Chapter 19.06 of this Code) shall permit any person on
the premises of the Adult Business to engage in a live showing of the human
male or female genitals, pubic area, or buttocks with less than a fully opaque
covering, and/or the female breasts with less than a fully opaque covering over
any part of the nipple or areola and/or covered male genitals in a discernibly
turgid state. This provision may not be complied with by applying an opaque
covering simulating the appearance of the specific anatomical part required
to be covered.
5.14,070
License-Nontransferable-Posting
No entertainment establishment license shall be sold, transferred, or assigned
by any license 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 license, and such license shall be thereafter null and void. A
license held by an individual in the name of a corporation or partnership is subject to
the same rules of transferability as contained above. License shall be valid only for
the exact location specified in 'the permit. Each license shall be posted in a
conspicuous place in or upon the premises for which it is issue, and shall be shown
to any City Official upon demand.
5,14,080
License-Fee.
A. For every person, firm, corporation or association of persons conducting,
operating, managing or carrying on a public dance, dance hall, dancing club,
dine and dance club or night club as the same are defined in Section 5.14.010,
the license fee shall be at the rate set by resolution adopted by the Mayor and
Common Council.
B. Every person, firm, corporation or association of persons operating,
conducting, or carrying on a public dance where the owner, manager or
operator does not operate, conduct or carry on a public dance at least one
night in each month, shall pay a license fee at the rate set by resolution
adopted by the Mayor and Common Council.
5.14.090
License-Duration.
Licenses issued pursuant to this Chapter shall be valid for a period of one year
or until revoked or abandoned.
5.14,100
Exemations from filina. arocessina and license fees
A. A bona fide church, nonprofit organization or charitable organization
recognized as such under state law, bona fide lodge, fratemal organization or
[Rev. February 10, 2000]
5-50
fratemal society which carries on such dances solely for the amusement or
entertainment of its bona fide members, or for the purpose of securing funds
for such organization for its own opeiOating needs or for charitable purposes,
shall be exempt from payment of filing, processing and license fees.
5.14.110
Suspension/Revocation of license
The City Clerk shall suspend or revoke a pennit issued under the provisions
of this chapter for any of the following reasons:
A. The licensee has ceased to meet the requirements for issuance of license;
B. The applicant gave materially false, fraudulent or misleading information on
the application;
C. The operation, as conducted by the licensee, does not comply with all .
applicable laws, including, but not limited to, the City's building, fire, zoning
and health regulations;
D. Excessively loud music or noise from the establishment for which the pennit
was issued interferes with the peace and quiet of the neighborhood;
E. The place of entertainment has been operated in violation of any of the'
requirements of this chapter.
F. The license 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 any 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 290, or any violation of Penal Code Sections 243.3,
261, 261.5, 264.1, 266, 266a through 266k, inclusive, 267, 286, 286.5, 288,
288 a, 311 through 311.10, inclusive, 314, 315, 316 or 647; or
G. If any person or persons is (are) convicted of a felony or misdemeanor for an
offense set forth in subsection (F) of this section 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.
5.14.120
Appeal
A. Any applicant aggrieved by the decision of the City Clerk with reference to the
issuance, conditional issuance, denial, suspension, or revocation of a license,
may appeal to the Hearing Officer for the City of San Bemardino, appointed
by the Mayor.
B. The right to appeal to the Hearing Officer from the denial, suspension or
revocation of any license required by this chapter shall tenninate 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 Clerk
[Rev. February 23, 2000]
5-51
and of his or her right to appeal such action to the Hearing Officer.
(
C. The hearing shall be held within twenty (20) days of the receipt by the City
Clerk of the appeal, or at the next regularly scheduled meeting of the Hearing
Officer, whichever is sooner.
D. The Hearing Officer shall render hislher decision within five days from the date
of the hearing. Said decision shall be sent by certified mail. Any applicant
aggrieved by the decision of the Hearing Officer shall have the right to appeal
to the City Planning Commission. The right to appeal to the City Planning
Commission shall terminate upon the expiration of fifteen (15) days following
the deposit of said decision by certified mail and advising the applicant of his
or her right to appeal such decision to the City Planning Commission. The
appeal hearing before the City Planning Commission shall be held within
twenty (20) days of the receipt by the City Clerk of the appeal request. The
Planning Commission shall render its decision within fourteen (14) days from
the date of the hearing. The decision of the Planning Commission shall be
final and conclusive and shall not be subject to appeal to the Mayor and
Common Council. Pursuant to Code of Civil Procedure Section 1094.6, any
action to review the decision of the Planning Commission shall be commenced
not later than the ninetieth day after the Planning Commission's decision is
rendered.
E. The Planning Commission shall take all lawful steps to insure that any
applicant aggrieved by its qecision shall be afforded prompt judicial review of
said Planning Commission's decision.
(Ord. MC-1059, 10-4-99; Ord. MC-1058, 9-20-99)
5.14.130
Licenses and Fees Not Exclusive
Fees and licenses required by this chapter shall be in addition to any license,
permit or fee required under any other chapter of this Code.
5.14,140
Exceptions
The provisions of this chapter shall apply prospectively and shall not operate
to revoke any valid live entertainment license in effect as of the date of the ordinance
codified in this chapter. The provisions of this chapter shall not be deemed to require
an entertainment license 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 piano or organ in any establishment;
C. For any entertainment provided for members and their guests at a private club
where admission is not open to the public;
D. For the playing of background music by any electronic means or instrument in
conjunction with the service and consumption of food.
. [Rev. February 23. 20001
5-52
5.14,150
Severability
In the event that any provision of this Ordinance, or any part thereof, or any
application thereof to any person or circumstance, is for any reason held to be
unconstitutional or otherwise invalid or ineffective by any court of competent
jurisdiction on its face or as applied, such holding shall not affect the validity or
effectiveness of any of the remaining provisions of this Ordinance, or any part thereof,
or any application thereof to any person or circumstance or of said provision as
applied to any other person or circumstance. It is hereby declared to be the legislative
intent of the City that this Ordinance would have been adopted had such
unconstitutional, invalid, or ineffective provisions not been included herein.
5.14.160
Penalty
Any person who violates, neglects, or refuses to comply with, or assists or
participates in any way in the violation of any of the provisions or requirements of this
Ordinance or of any of the provisions or requirements of any Entertainment License,
shall be guilty of a misdemeanor.
(Ord. MC-1050, 7-12-99; Ord. MC-1051, 7-19-99; Ord. MC-1052, 7-19-99)
Sections:
5,16.010
5,16.020
5,16.030
5.16,040
5,16.050
5,16.060
5,16.070
5,16.080
5,16.090
5.16.100
5,16,110
5,16.120
5,16.130
5,16.140
5.16.150
5.16.160
5,16.170
Chapter 5.16
FIRE, REMOVAL OR CLOSING-OUT SALES'
Definitions.
Examination and investigation of records and
accounts.
Permit-Required.
Permit-Application-Fee.
Permit-Application-Endorsement-Record
to be kept.
Permit-Application-False statements.
Permit-Issuance.
Permit-Supplemental to original permit.
Permit-Duration,
Permit-Revocation-Grounds and procedure.
Removal of goods - Loss or identity.
Certain goods not to be sold.
Purchase of goods prior to sale.
Addition to stock not permitted.
Advertising-Permit required.
Exemptions.
Applicability of Chapter.
4 For additional provisions and license fees for fire, bankrupt or wreck sales, see also
g5,04.265 of this Title.
[Rev. February 10. 2000]
5-53