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HomeMy WebLinkAbout2009-10-20; City Council; 20009; Adult Business License OrdinanceCITY OF CARLSBAD - AGENDA BILL 20.009AB# MTG. 10/20/09 DEPT. Clerk ADULT BUSINESS LICENSE ORDINANCE MCA 09-01 DEPT. HEAD CITY ATTY. CITY MGR. RECOMMENDED ACTION: Adopt Ordinance No. CS-062, amending Title 8 of the Carlsbad Municipal Code, by amending Chapter 8.60 to specify that an Adult Business License may be denied, suspended or revoked based on the License Applicant's/Holder's history of misdemeanor or felony sex- related convictions. ITEM EXPLANATION: Ordinance No. CS-062 was introduced and first read at the City Council meeting held on October 6, 2009. The second reading allows the City Council to adopt the ordinance which will become effective thirty days after adoption. The City Clerk will have the ordinance published within fifteen days, if adopted. FISCAL IMPACT: See Agenda Bill No. 19,983 on file in the Office of the City Clerk. EXHIBITS: 1. Ordinance No. CS-062. DEPARTMENT CONTACT: Karen R. Kundtz (760) 434-2808, karen.kundtz@carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION:APPROVED ty DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D 1 ORDINANCE NO. CS-062 2 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA AMENDING TITLE 8 OF THE 4 CARLSBAD MUNICIPAL CODE BY AMENDING CHAPTER 8.60 TO SPECIFY THAT AN ADULT BUSINESS LICENSE MAY BE DENIED, SUSPENDED OR REVOKED BASED ON THE 6 LICENSE APPLICANT'S/HOLDER'S HISTORY OF 7 MISDEMEANOR OR FELONY SEX-RELATED CONVICTIONS. CASE NAME: ADULT BUSINESS LICENSES 9 CASE NO.: MCA 09-01 10 SECTION I. FINDINGS. The City Council of the City of Carlsbad hereby finds, 11 , 2 determines, and declares that: 13 A. In recognition of the negative secondary effects generated by live adult 14 entertainment establishments, a number of courts have upheld ordinances which require that 15 employees, as well as the owners and managers of such establishments submit background 17 information on criminal convictions related to relatively recent sexual offenses so that a public 18 entity can assess an individual's ability to function responsibly in the adult business setting. See 19 20 TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705, 710 (5th Cir. 1994); and see Club 21 Southern Burlesque, Inc. v. City of Carrolton, 265 Ga. 528, 532, 457 S.E.2d 816 (1995). This 22 includes not only the applicant for an adult business license, but individuals who work in adult 23 24 businesses during regular business hours as performers and non-performers where the criminal 25 background check is limited to a period of no more than five (5) years immediately preceding 26 the date of application. See Doctor John's, Inc. v. City of Roy, 465 F.3d 1150, 1171 (10th Cir. 28 2006); McCrothers Corp. d/b/a Tree City Bar, et al. v. City of Madan, 728 N.W.2d 124 (2007); Tee & Bee v. City of West Allis, 936 F.Supp. 1479, 1487 (E.D. Wis. 1996); Club Southern Burlesque, Inc., 265 Ga. at 532. B. The City Council, in adopting operational standards, recognizes that the requirement for disclosure of recent criminal activity is to be narrowly tailored and to impose no greater restriction on First Amendment freedoms than is necessary to minimize the secondary harms stated in the ordinance. See TK's Video v. Denton County, 830 F.Supp. 335, 343 (E.D. Tex. 1993), vac'd-//? part on other grounds, 24 F.3d 705 (5th Cir. 1994). C. When, as with this ordinance, the civil disability provision of an adult- 2 oriented business ordinance is tailored to apply to sex-related crimes only, the "relationship 4 between the offense and the evil to be regulated is direct and substantial." FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1305 (5th Cir. 1988) and affirmed in part and vacated in part in 6 _ FW/PBS, Inc. v. City of Dallas, 493 U.S. 215; see a/so TK's Video, 24 F.3d at 711 and see Deja 8 Vu of Nashville, Inc. v. Metro Gov't of Nashville and Davidson County, 274 F.3d at 392 (6th Cir. 9 2001); Brownell v. City of Rochester, 190 F. Supp.2d 472, 494-96 (W.D.N.Y. 2001); Tee & Bee, 10 936 F.Supp. at 1490. 12 D. Carlsbad adopts the reasoning of courts finding that "Certain employees of unregulated sexually oriented businesses . . . engage in higher incidence of certain types of 14 illicit sexual behavior than employees of other establishments" and has a reasonable basis to 16 believe this reasoning is applicable in the Carlsbad community. Further, the "fact that an 17 applicant for an adult use permit has been convicted of a sexually related crime leads to the 18 19 rational assumption that the applicant may engage in that conduct in contravention of this 20 ordinance." Hence, "[t]he barring of such individuals from employment in sexually oriented 21 businesses for a specified period of years serves to prevent distribution of illegal material, to 22 23 prevent conduct which leads to the transmission of sexually transmitted diseases, and to 24 preclude the establishment of criminal enterprises within the City." Dr. John's at 1171 n. 25 30.1288124.1. 26 27 E. That the findings of the City Council set forth in City Council Ordinance 28 No. NS-761 (on file in the City Clerk's Office) are made a part hereof by reference. SECTION II. AMENDMENT OF CODE. The title and headings of Chapter 8.60 of the Carlsbad Municipal Code are amended to read as follows: Chapter 8.60 ADULT BUSINESS LICENSES AND OPERATING REGULATIONS Sections: 8.60.010 Purpose. 8.60.020 Definitions. 8.60.030 Operating standards. -2- 8.60.040 Adult business license. 2 8.60.050 Felony and misdemeanor convictions. 8.60.060 Adult business license applications. 8.60.070 Transfer of adult business license. 4 8.60.080 Appeal procedures. - 8.60.090 Suspension or revocation of adult business license. 8.60.100 Employment of and services rendered to persons under the age of eighteen 6 years prohibited; twenty-one if liquor is served. 7 8.60.110 Regulations non-exclusive. 8.60.120 Violations. 8 8.60.130 Public nuisance. 8.60.140 Severability. 10 SECTION III. AMENDMENT OF CODE. Section 8.60.050 of the Carlsbad Municipal Code is amended to read as follows: 12 8.60.050 Felony and misdemeanor convictions. A. An application for an adult business license shall include a signed and verified 14 statement made by the applicant that the license applicant, if an individual, or by all of the partners, officers, directors, if an L.L.C., partnership or corporation, declaring that none of them has pled guilty or nolo contendere or been convicted of an offense classified by this or any other 16 state as a sex or sex-related offense, and: (1) more than two years have elapsed since the date 17 of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (2) more than five years have 18 elapsed since the date of conviction or the date of release from confinement of conviction to the 19 date of application, whichever is the later date, if the conviction is a felony; or (3) more than five years have elapsed since the date of the last conviction or the date of release from confinement 20 for the conviction to the date of application, whichever is the later date, if the convictions are two 21 or more misdemeanors or combination of misdemeanor offenses occurring within any twenty- four month period. 22 B. The adult business owner/license holder shall annually submit a signed and 23 verified statement and processing fee to the chief of police declaring that there has been no change with respect to the owner/license holder having within this state or any other state: (1) 24 pied guilty or nolo contendere of a sex or sex-related offense, or (2) been convicted of a sex or 25 sex-related offense. Any plea of guilty or nolo contendere to or conviction of a sex or sex- related offense may be grounds for suspension or revocation of the adult business license, subject to section 8.60.090 of this chapter. 27 SECTION IV. AMENDMENT OF CODE. Section 8.60.060J of the Carlsbad28 Municipal Code is amended to read as follows: J. The chief of police shall deny the application if the applicant fails to establish any of the following: 1. The adult business complies with the city's zoning requirements as to its underlying zoning designation. 2. The adult business complies with the development, operational or performance standards found in this chapter. 3. The license applicant is at least eighteen years of age. 4. The required application fees have been paid. 5. The application complies with Section 8.60.040 (status of an L.L.C.). 6. The license applicant complies with section 8.60.050A of this chapter. -3- 1 SECTION V. AMENDMENT OF CODE. Section 8.60.090B of the Carlsbad 2 . Municipal Code is amended to read as follows: 4 B. A license may be suspended or revoked based on the following causes arising from the acts or omissions of the license holder, or an employee, independent contractor, partner, director, or manager of the license holder: 6 1. The building, structure, equipment, or location used by the adult business 7 fails to comply with all provisions of these regulations and this section relating to adult businesses, including the adult business operational standards contained in Section 8.60.030 8 and the zoning requirements of Chapter 21.43, and all other applicable building, fire, electrical, plumbing, health, and zoning requirements of this code. 2. The license holder has failed to obtain or maintain all required city 10 licenses. 3. The license holder has made any false, misleading, or fraudulent statement of material fact in the application for an adult business license. 12 4. The license is being used to conduct an activity different from that for which it was issued. 5. That an individual employed by, or performing in, the adult business 14 (whether classified as an employee or independent contractor) has been convicted of two or more sex-related offenses that occurred in or on the licensed premises within a twelve month period and was employed by, or performing in, the adult business at the time the offenses were 16 committed. 17 6. That the use for which the approval was granted has ceased to exist or has been suspended for six months or more. 18 7. The license holder has: 19 (i) Within the past two years, pled guilty or nolo contendere, or been convicted of, or released from confinement of conviction of, whichever is the later date, an 20 offense classified by this or any other state as a sex or sex-related offense, if the conviction is a misdemeanor; or (ii) Within the past five years, pled guilty or nolo contendere, or been 22 convicted of, or released from confinement of conviction of, whichever is the later date, an 23 offense classified by this or any other state as a sex or sex-related offense, if the conviction is a felony; or 24 (jji) Within the past five years, pled guilty or nolo contendere, or been 25 convicted of, or released from confinement of conviction of, whichever is the later date, two or more offenses classified by this or any other state as sex or sex-related offenses if the 26 convictions are two or more misdemeanors or combination of misdemeanor offenses occurring 27 within any twenty-four month period. 8. That the transferee/new owner of an adult business or adult business license failed to comply with the requirements of this chapter. 9. The license holder, partner, director, or manager has knowingly allowed or permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the adult business; or a licensee has been convicted of violating any of the following state laws on the premises of the adult business: (i) Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation. (ii) Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur. (iii) Any conduct constituting a criminal offense which requires registration under Section 290 of the California Penal Code. (iv) The occurrence of acts of lewdness, assignation, or prostitution, including any conduct constituting violations of Sections 315, 316 and 318 of the California Penal Code. (v) Any act constituting a violation of provisions in the California Penal Code -4- relating to obscene matter or distribution of harmful matter to minors, including, but not limited 2 to, Sections 311 through 313.4. _ (vi) Any act constituting a felony involving the sale, use, possession, or possession for sale of any controlled substance specified in Sections 11054, 11055, 11056, 4 11057, or 11058 of the California Health & Safety Code. (vii) An act or omission in violation of any of the requirements of this chapter if such act or omission is with the knowledge, authorization, or approval of the license holder or is 6 as a result of the license holder's negligent supervision of the employees or independent 7 contractors of the adult facility. This includes the allowance of activities that are or become a public nuisance which includes the disruptive conduct of business patrons whether on or 8 immediately off the premises where such patrons disturb the peace, obstruct traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property. 10 SECTION VI. EFFECTIVE DATE. This Ordinance shall be effective no sooner 12 than thirty (30) days after its adoption and the City Clerk shall certify the adoption of this 13 Ordinance and cause it to be published at least once in a newspaper of general circulation in 14 the City of Carlsbad within fifteen (15) days after its adoption. 16 /// 17 /// 18 19 "/ 20 /// 21 22 /// 23 24 /// 25 26 /// 27 28 /// -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City Council on the 6- day of October. 2009, and thereafter. PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 20^ day of October. 2009, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Blackburn. NOES: None. ABSENT: None. ABSTAIN: None. APPROVED AS TO FORM AND LEGALITY RONALD R. BALL, City Attorney ATTE: LORRAINENM. WOQD) City Clerk //(SEAL)