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HomeMy WebLinkAbout2019-03-12; City Council; ; Amendment to the Carlsbad Municipal Code Chapter 8.09, Entertainment License, updating the entertainment license requirements and guidelines for businesses.CA Review ~ ~ CITY COUNC IL ~ Staff Report Meeting Date: To: From: Staff Contact: Subject: March 12, 2019 Mayor and City Council Scott Chadwick, City Manager Claudia Huerta, Village Manager Claudia.Huerta@carlsbadca.gov or 760-268-4759 Christie Marcella, Economic Development Manager Christie.Marcella@carlsbadca.gov or 760-602-2732 Amendment to the Carlsbad Municlpal Code Chapter 8.09, Entertainment License, updating the entertainment license requirements and guidelines for businesses. Recommended Action Introduce an Ordinance amending Carlsbad Municipal Code, Chapter 8.09, Entertainment License. Executive Summary The city's entertainment ordinance provides guidelines for all business establishments with an ABC license seeking to provide live entertainment at their establishment in the city. Since the latest update to Chapter 8.09 Entertainment License in 2007 there are additional types of businesses in the city that would like to provide live musical entertainment (i.e. breweries, wine bars, etc), but current entertainment license eligibility criteria do not encompass these business types. Additionally, various businesses owners with an entertainment license or that would like to obtain one have shared with staff the need for additional criteria and improved clarity in the application submission process. City staff has researched the issue of allowing live musical entertainment at business establishments that are currently not eligible for a live entertainment license. Based on this research, city staff is recommending that the City Council amend the entertainment license provisions to allow additional types of businesses to apply for and potentially receive a live entertainment license. The proposed amendments to Chapter 8.09 expand the business type eligibility criteria and change administrative processing to improve application submission coordination for live entertainment licenses. These changes are being brought to the City Council for consideration as only the City Council can adopt changes to the Carlsbad Municipal Code. March 12, 2019 Item #6 Page 1 of 33 Discussion Recent trends in active commercial spaces have increased market demands for businesses to provide more experiential options for customers. For example, live entertainment has become a great way to create a special ambiance that entices customers to visit businesses more regularly. Live entertainment in the city is regulated pursuant to Chapter 8.09 of the Carlsbad Municipal Code. The purpose of the city's entertainment license ordinance is to provide guidelines for entertainment establishments in the city to help minimize negative effects and maintain public safety. Since the latest update to Chapter 8.09 in 2007, there are additional types of businesses in the city with ABC licenses, like breweries and wine bars, that would like to provide live entertainment but, are unable to obtain a live entertainment license because they do not meet the current entertainment license criteria. After consulting with the police department, staff does not believe allowing entertainment at these establishments would have an adverse effect on public safety. The recommended amendments to the entertainment license ordinance aim to help better support arts and culture in the city and make the city more competitive with other cities in the region that recognize and support a variety of entertainment establishments while still preserving public safety. The proposed entertainment ordinance update (Exhibit 2) affects all. business establishments with an ABC license seeking to be an entertainment establishment within city limits. The City of Carlsbad defines an entertainment establishment as any commercial business, except a business entity possessing a valid cabaret license or regulated by Chapter 8.60 of the Municipal Code that is open to the public wherein alcoholic beverages are served, subject to licensing by State of California Department of Alcoholic Beverage Control and offers entertainment to patrons. Subsequently, within city limits entertainment is considered to be any single event, a series of events, or an ongoing activity, to which the public is invited or allowed to watch, listen, or participate in activities including: • Dancing to live or recorded music • Music played by a DJ • Live music by single or multiple performers • Music presented by videos, music concerts or other similar forms of musical entertainment from any source • Other entertainment performers, such as hypnotists, pantomimes, comedians, song or dance acts, plays, concerts, any type of contest; sporting events, exhibitions, carnival or circus acts, demonstrations of talent or items for gift or sale; shows, reviews, etc. The cost to obtain an entertainment license (the application fee) is currently $229 and a license is in effect for 3 years from the date of approval. Since the adoption of the entertainment license ordinance, businesses that have been granted entertainment licenses by the Police Department under the Class I and Class II designations have generally been limited to bona fide eating establishments or establishments with grandfathered cabaret licenses. Additionally, as a part of the review process the police department has exercised interpretive discretion on the March 12, 2019 Item #6 Page 2 of 33 kinds of entertainment, such as size of band and noise level, that is permitted when they approve the entertainment license. Various businesses have wanted to get entertainment licenses, but have not been able to obtain approval of such a license from the Police Department unless they change their business to a bona fide eating establishment. In most instances becoming a bona fide eating establishment entails a significant financial investment as a business would need to build a kitchen and serve food. Businesses have shared with staff that installing a full kitchen, other related infrastructure and incurring additional project fees are prohibitive, especially for smaller, family operated businesses. The proposed amendments address these concerns and remove these limitations. Additionally, a business' ABC license must allow for the operator to provide entertainment on their premises. Staff recognizes current city entertainment license guidelines may restrict a business' ABC license solely based on business type and not whether entertainment at the business would at all impact public safety. As part of the update process, on July 23, 2018, in partnership with the Carlsbad Chamber of Commerce, city staff convened an outreach meeting to get feedback on the proposed updates- with businesses that currently have an entertainment license or that have expressed interest in applying for one. Ten business owners and representatives from eight business establishments attended the meeting and provided positive feedback on the proposed changes. Comments focused on application process guidelines, submittals, and renewals. Some businesses also had questions about whether entertainment licenses will ever allow dancing in the future and staff shared with attendees that such changes are not being considered at this time. The first proposed amendment to Carlsbad Municipal Code Chapter 8.09, Section 8.09.020 will add the following definitions: • "Class Ill entertainment establishment" means a business that is a public premises establishment with an ABC license offering entertainment to patrons that does not include dancing by patrons of the establishment. • "Public Premises Establishment" has the same meaning as that used in California Business and Professions Code Section 23039 where "Public Premises" means: (1) Premises licensed with any type of license other than an on-sale beer license, and maintained and operated for the selling or serving of alcoholic beverages to the public for consumption on the premises, and in which food shall not be sold or served to the public as in a bona fide public eating place, but upon which premises food products may be sold or served incidentally to the sale or service of alcoholic beverages, in accordance with rules prescribed by the department. (2) Premises licensed with an on-sale beer license, in which food shall not be sold or served to the public as in a bona fide public eating place, and in which sandwiches, salads, desserts, and similar short orders shall not be sold and served, in accordance with rules prescribed by the department. March 12, 2019 Item #6 Page 3 of 33 These two additions create a new entertainment establishment class and expand the types of businesses that can apply for an entertainment license to include public premises establishments with an ABC license. In addition, in an effort to provide consistency throughout the city and to advance the health and vitality of the Village and Barrio, staff will also be providing a recommendation in the near future to eliminate the "Restaurant with Entertainment" land use designation in the 2018 Village and Barrio Master Plan. The removal of this land use designation from the Master Plan will remove additional requirements for businesses in the Village and Barrio so that the Entertainment License ordinance can be applied uniformly throughout the city. The other proposed amendments in Sections 8.09.060, 8.09.080, 8.09.090 will change the application routing process from the police department to the Community and Economic Development Department to enhance the level of service to applicants. If these changes are approved Community and Economic Development will provide a clear point of contact for applicants. They will have the responsibility to route applications through the review process and work with all reviewing departments and divisions (Police, Building, Planning and Fire). Businesses are already interacting with the Community & Economic Development Department through their permitting and business licensing efforts at the Carlsbad Faraday Center. This administrative change keeps their customer service experience consistent. The Police Chief will still review and sign off on all entertainment licenses so that the police department can still enact enforcement. Fiscal Analysis Funding for the amendments to the entertainment ordinance will not have a significant fiscal impact. No additional appropriation is required. Next Steps Following introduction of the Ordinance, the City Clerk will prepare the Ordinance for adoption at the next Regular Council Meeting. Once adopted, the City Clerk will publish the Ordinance or a summary of the Ordinance in a newspaper of general circulation within 15 days. The ordinance will be effective 30 days following the adoption. Community & Economic Development staff will work with Police to facilitate the recommended application coordination to improve service delivery to applicants. Environmental Evaluation (CEQA) Pursuant to Public Resources Code section 21065, this action does not constitute a "project" within the meaning of CEQA in that it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and therefore does not require environmental review. March 12, 2019 Item #6 Page 4 of 33 Public Notification The city conducted a variety of public outreach efforts for the proposed amendments to the entertainment license ordinance, including: individual business meetings and a group stakeholder meeting. This item was noticed in accordance with the Ralph M. Brown Act and was available for public viewing and review at least 72 hours prior to scheduled meeting date. Exhibits 1. City Council Ordinance 2. Entertainment License Ordinance Amendments Strikeout Version 3. Entertainment License Ordinance Amendments Clean Version March 12, 2019 Item #6 Page 5 of 33 ORDINANCE NO. CS-351 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CHAPTER 8.09 ENTERTAINMENT LICENSES Exhibit 1 WHEREAS, there are new types of businesses allowed in the City since the latest update to Chapter 8.09 that would like to provide entertainment; and WHEREAS, City staff has researched the benefits of live entertainment and the changing needs to provide it by the business community due to increased demand for live entertainment to stay competitive and provide more experiential features to stay competitive and viable; and WHEREAS, City staff talked with various business owners that have entertainment licenses or would like to have an entertainment license to ensure the proposed changes will provide more clarity and reduce confusion on the entertainment license process; and NOW, THEREFORE, the City Council of the City of Carlsbad, California, ordains as follows that: 1. The above recitations are true and correct. 2. Carlsbad Municipal Code Chapter 8.09, Section 8.09.020 is amended to add the following definitions: "Class Ill entertainment establishment" means a business that is a public premises establishment with an ABC license offering entertainment to patrons that does not include dancing by patrons of the establishment. "Public Premises Establishment" has the same meaning as that used in California Business and Professions Code Section 23039. 3. Carlsbad Municipal Code Chapter 8.09, Section 8.09.060 is amended to read as follows: 8.09.060 Application/modification requirements. A. Any person or business entity desiring to obtain an entertainment license or modification shall submit a complete application to the chief of police through the Office of Community and Economic Development and pay an application fee pursuant to Section 8.09.070. B. The application shall be in a form approved by the chief of police. C. The application shall be filed: 1. At least 45 days prior to the proposed operation of the entertainment establishment; or March 12, 2019 Item #6 Page 6 of 33 2. At least 45 days prior to the expiration of either a cabaret or entertainment license; or 3. At any time for a modification. D. The application shall state the class of entertainment (Class I, Class II or Class Ill) that the entertainment establishment will provide to patrons. E. The entertainment license application shall include five copies of a floor plan. The floor plan shall be an accurate representation ofthe floor plan approved by the city building and fire departments as part of a formal building permit process. Any changes that have occurred to the floor plan since the original city building and fire department approval shall be identified and include a notation identifying the date the modification was approved by the city if such approval was required. The floor plan shall show all customer seating· areas, performing stages or platforms, back-of-house areas, restroom facilities, and any proposed dance areas if applying for a Class II entertainment license. The floor plan shall clearly state the legal occupant load as established as part of the formal building permit process, and all exiting systems of the premises shall be clearly shown. No floor plan change, occupant load change, or other change of use can be approved as part of an application process for an entertainment license. F. The application for an entertainment license shall include five copies ofthe proposed site plan for the entertainment establishment and the site plan shall be an accurate representation with dimensions that show the building's footprint, boundary and property lines and on site parking spaces. Any changes that have occurred to the site plan since the original city building and fire department approval shall be identified and include a notation identifying the date the modification was approved by the city if such approval was required. G. The application shall also include a copy of any city land use permits (e.g., conditional use permit, redevelopment permit, etc.) issued to the property owner or business entity. H. The entertainment license _application shall include a detailed security plan. The security plan should include, but is not limited to, the following: 1. The number of security personnel who will be on duty; 2. The minimum level of acceptable training for security personnel; 3. The patron screening procedure, if any, prior to admission to entertainment establishment; 4. Identify patron access points into the entertainment establishment; 5. Removal of disorderly or intoxicated patrons from premises; and 6. Dispersal of patrons from the entertainment establishment, on site parking area and/or public rights-of-way (e.g., sidewalk or street) within 50 feet of any entrance to the entertainment establishment. March 12, 2019 Item #6 Page 7 of 33 4. Carlsbad Municipal Code Chapter 8.09, Section 8.09.080 is amended to read as follows: 8.09.080 Approval/denial/modification of entertainment license. A. Upon completion of an investigation coordinated by the Office of Economic Development, the chief of police shall issue the license subject to Section 8.09.090, as applicable, unless it is found that: 1. The application fee has not been paid. 2. Applicant is less than 21 years of age. 3. The application does not conform to the provisions of this chapter. 4. The applicant has made a material misrepresentation in the application. 5. The applicant or any of its owners, partners, officers or directors has had an entertainment license revoked within two years prior to the date of the pending application. 6. The proposed entertainment establishment does not comply with all applicable laws, including, but not limited to: health, zoning, building, and fire code requirements. Prior to granting a license, the chief of police or designee shall obtain certification from the fire chief, city planner, and building official that the proposed use is in compliance with the land use and zoning provisions of the applicable municipal code provisions and Village and Barrio Master Plan (if applicable), and that the structures are suitable and safe for the proposed operation of an entertainment establishment. B. If the chief of police denies the application, the applicant shall be notified of the reasons for the denial in writing within 45 days after receipt of the application. However, failure to notify the applicant within the specified time period shall not constitute a basis for granting the license. An applicant denied an entertainment license has a right to appeal the denial pursuant to Section 8.09.150 of this chapter. If such a hearing is not requested within the prescribed time period, the denial shall be final. C. If a conditional use permit, or any other permit or approval, except a certificate of occupancy, is required for the lawful operation of an entertainment establishment, the provisions of this chapter shall be in addition to those other permits and entitlements. An entertainment license cannot modify the terms of a conditional use permit or any other permit or approval. 5. Carlsbad Municipal Code Chapter 8.09, Section 8.09.090 is amended to read as follows: 8.09.090 Entertainment license standards and conditions. March 12, 2019 Item #6 Page 8 of 33 A. All Class I, Class II and Class Ill entertainment establishments shall operate in accordance with the following standards or conditions: 1. Display of License. The entertainment license shall be displayed on the premises in a conspicuous place so that law enforcement persons entering may readily see the entertainment license. A copy of the floor plan approved with the entertainment license shall be made available at all times at the request of any law enforcement officer, fire marshal or deputy fire marshal. 2. Hours of Operation. All entertainment establishments shall otherwise close and all patrons shall vacate the premises between 2:00 a.m. and 6:00 a.m. unless the entertainment license is conditioned for additional hours of closure. 3. Noise Restrictions. Noise shall be measured in accordance with Section 8.09.110. Between the hours of 10:00 p.m. and 7:00 a.m. no entertainment establishment may cause, permit or maintain noise at a sound level to the extent that the one-hour average sound level exceeds 65.0 dBA Leq-lm at the property line of the entertainment establishment of which the noise is produced. The noise subject to these limits is that part of the total noise at the specified location that is due solely to the action of said responsible party. 4. Manager and Service Training. The following persons must complete a responsible beverage service training course before the entertainment establishment may provide entertainment: i. Every manager must complete a responsible beverage service training course within 90 days of hire, or by January 1, 2008, whichever is later. ii. Every person who serves or sells alcoholic beverages for consumption by patrons on the premises of an entertainment establishment shall complete a responsible beverage service training course within 90 days of hire, or by January 1, 2008, whichever is later. 111. Every manager and every person who serves or sells alcoholic beverages for consumption by patrons on the premises of the entertainment establishment shall maintain a current responsible beverage service training course certificate. iv. A list of all persons employed as managers or persons who serve or sell alcoholic beverages for consumption by patrons on the premises of an entertainment establishment shall be maintained on the premises of the entertainment establishment. The list shall clearly identify the hire date, the date of each responsible beverage service training course was completed and the date the current training certificate will expire for every manager and every person March 12, 2019 Item #6 Page 9 of 33 who serves or sells alcoholic beverages for consumption by patrons on the premises of the entertainment establishment. The list shall be provided, upon request, to any police officer for inspection. 5. Maximum Occupant Load. The maximum number of persons in the entertainment establishment, other than employees, shall not, at any time, exceed the maximum occupant load as established by the fire marshal or the city building official. 6. Disturbing the Peace and Disorderly Conduct. The responsible party shall make reasonable efforts to prevent the admission of any person, whose conduct is described in California Penal Code Section 415 (fighting, loud noise, offensive words in public places) or PC 647 (disorderly conduct), inside the entertainment establishment, at any on site parking lot owned or under the control by the entertainment establishment, or on any sidewalk used by the entertainment establishment for the entertainment establishment. The responsible party shall make reasonable efforts to either call the police for assistance or remove from the entertainment establishment, parking lot or sidewalk persons exhibiting such conduct. 7. Maintaining Adequate Right-of-Way. The responsible party shall ensure that patrons queuing on the public sidewalk do not obstruct the right-of-way or sidewalk from vehicular or pedestrian access. The minimum clear access for sidewalks shall be maintained at 44 inches. 8. Orderly Dispersal. The responsible party shall use reasonable efforts to cause the orderly dispersal of patrons from the entertainment establishment at closing time, and shall use reasonable efforts to prevent patrons from congregating in the entertainment establishment's parking lot after closing time or permit patrons to congregate in any roadway or traffic lane within 50 feet of any entrance to the entertainment establishment. 9. Obey all federal, state and local laws. B. In addition to the conditions set forth in subsection A of this section, the chief of police may impose additional conditions in the following areas which shall be based on specific, articulated facts setting forth the necessity for the conditions: 1. The permissible hours of operation for entertainment. 2. Specific licensing qualifications and numbers of security personnel to be on duty during business hours. EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the City Clerk shall certify the adoption of this ordinance and cause the full text of the ordinance or March 12, 2019 Item #6 Page 10 of 33 a summary of the ordinance prepared by the City Attorney to be published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen days after its adoption. INTRODUCED AND FIRST READ at a Regular Meeting of the Carlsbad City Council on the 12th day of March 2019, and thereafter PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the_ day of ___ _, 2019, by the following vote, to wit: AYES: NOES: ABSENT: APPROVED AS TO FORM AND LEGALITY: CELIA A. BREWER, City Attorney MATT HALL, Mayor BARBARA ENGLESON, City Clerk (SEAL) March 12, 2019 Item #6 Page 11 of 33 Exhibit 2 8.09.010 Purpose. The City of Carlsbad encourages the development of arts and culture and recognizes that having many entertainment establishments provides a means for such activity. The City of Carlsbad further recognizes that having a variety of entertainment types in the city promotes a rich and diverse cultural experience. The City of Carlsbad also recognizes that entertainment establishments serving alcohol have demonstrated the potential for creating an environment where various types of disturbances, excessive noise, and disorderly conduct by inebriated patrons may occur. These negative effects are adverse to the public safety and the quality of life in the community. The purpose of this chapter is to regulate the operation of entertainment establishments so as to minimize the negative effects and to preserve the public safety, health and welfare. It is not the city's intent to regulate or restrict the type or content of entertainment provided in those establishments. All licensees will be responsible for controlling patron conduct at their entertainment establishment, making adequate provisions for security and crowd control, compliance with state and local laws and minimizing disturbances caused by the operation of an entertainment establishment. It is also the intent of the City of Carlsbad to provide alternatives to the regulating of entertainment establishments by imposing license conditions tailored to the particular entertainment establishment. (Ord. NS-859 § 3, 2007) 8.09.020 Definitions. For purposes of this chapter the following words and phrases shall have the following meanings: "A-weighted sound level" means the sound level in decibels as measured on a sound level meter using A-weighting network. The level is displayed in decibels and is designated either dB(A) or dBA. "ABC license" means a license to serve alcoholic beverages issued by the State of California Department of Alcoholic Beverage Control. "Ambient music" means prerecorded, low-level, background music, which is inaudible from any portion of the exterior of the premises. Ambient music does not include music played by a "disc jockey" or "DJ." "Ambient noise level" means the composite noise from all sources near and far. In this context, the ambient noise level constitutes a normal or existing level of environmental noise at a given location and time. "Ambient sound" means vibrations that travels through the air and are detectible by the ear and which are inaudible from any portion of the exterior of the premises. "Ambient television" means television programming routinely shown on broadcast, cable, satellite or other networks which now exist or which may be developed in the future which is inaudible and not visible from any portion of the exterior of the premises. "Average sound level" means a sound level typical of the sound levels at a certain place during a given period of time, averaged by the general rule of combination for sound levels, as set forth in Sl.40-1984, as amended from time to time, of the American National Standards Institute March 12, 2019 Item #6 Page 12 of 33 specifications for sound level meters. Average sound level is also called equivalent continuous sound level ("Leg"). "Cabaret license" means a cabaret license issued pursuant to Section 8.09.014 as it existed before the revision of this code by the enactment of this chapter, entertainment license. "Class I entertainment establishment" means a business with an ABC license offering entertainment to patrons that does not include dancing by patrons of the entertainment establishment. "Class II entertainment establishment" means a business with an ABC license offering entertainment to patrons that includes dancing by patrons of the entertainment establishment. "Class III entertainment establishment" means a business that is a public premises establishment with an ABC license offering entertainment to patrons that does not include dancing by patrons of the establishment. "Dance or dancing" means to move with rhythmical steps or movement, usually to music or an audible rhythm; except for any dance that is regulated under Chapter 8.60 (Adult Business Licenses and Operating Regulations). "Decibel (dB)" means a unit of measure of sound noise level. "Disturbing, excessive or offensive noise" means: (a) any noise which constitutes a nuisance involving discomfort or annoyance to persons of normal sensitivity residing in the area; or (b) any noise conflicting with the criteria or levels set forth in this chapter. "Entertainment" means any single event, a series of events, or an ongoing activity or business, occurring alone or as part of another business, to which the public is invited or allowed to watch, listen, or participate, or is conducted for the purposes of holding the attention of, gaining the attention of, or diverting or amusing patrons, including: 1. Dancing by patron(s) to live or recorded music. 2. The presentation of music played on sound equipment operated by an agent or contractor of the establishment, commonly known as "disc jockey" or "DJ." 3. The presentation of live music whether amplified or on-amplified. 4. The presentation of music videos, music concerts or other similar forms of musical entertainment from any source. 5. Any amusement or event such as live music or other live performance which is knowingly permitted by any entertainment establishment, including presentations by single or multiple performers, such as hypnotists, pantomimes, comedians, song or dance acts, plays, concerts, any type of contest; sporting events, exhibitions, carnival or circus acts, demonstrations of talent or items for gift or sale; shows, reviews, and any other such activity which may be attended by members of the public. "Entertainment establishrnent(s)" means any commercial business, except a business entity possessing a valid cabaret license or regulated by Chapter 8.60 of this code that is open to the public wherein alcoholic beverages are served, is subject to licensing by State of California Department of Alcoholic Beverage Control and offers entertainment to patrons. "Entertainment license" means a license obtained from the chief of police pursuant to the provisions of this chapter for the purposes of operating an entertainment establishment. March 12, 2019 Item #6 Page 13 of 33 "Manager" means a person, regardless of the job title or description, who has discretionary powers to organize, direct, carry on, or control the operations of an entertainment establishment, including a restaurant or bar. Authority to engage in one or more of the following functions is prima facie evidence that a person is a manager of the entertainment establishment: 1. Hire or terminate employees; 2. Contract for the purchase of furniture, equipment, or supplies, except for the occasional replenishment of stock; 3. Disburse funds of the business, except for the receipt of regularly replaced items of stock; 4. Make or participate in making policy decisions regarding operations of the entertainment establishment. "Noise" means and includes ambient music, ambient television, ambient sound, or entertainment. "Noise level" has the same meaning as "Sound level." "On-sale" has the same meaning as California Business and Professions Code Section 23038. "Public Premises Establishment" has the same meaning as that used in California Business and Professions Code Section 23039. "Responsible beverage service training course" means a course certified by the California Department of Alcoholic Beverage Control for on-sale management and on-sale professional services. "Responsible party" means any person who is physically at the entertainment establishment and is any of the following: 1. The person who owns the entertainment establishment; 2. The person in charge of the entertainment establishment; 3. The person using the entertainment establishment under a special arrangement; 4. An employee or agent of an owner or manager of the entertainment establishment when the owner or manager is temporarily absent from the entertainment establishment; 5. The entertainment establishment's manager or on-site supervisor. "Sound level" means in decibels, the weighted sound pressure level obtained by the use of a sound level meter and frequency weighing network as specified in S 1 .40-1984, as amended from time to time, of the American National Standards Institute specifications for sound level meters. If the frequency weighting employed is not indicated, the A-weighting is implied. "Sound level meter" means an instrument, including a microphone, an amplifier, a readout, and frequency weighting networks for the measurement of sound levels, which meets or exceeds the requirements pertinent for type S2A meters in S 1 .40-1984, as amended from time to time, of the American National Standards Institute specifications for sound level meters. "Sound noise level" has the same meaning as "sound level." 8.09.030 Entertainment license required. All entertainment establishments shall possess an entertainment license. (Ord. NS-859 § 3, 2007) March 12, 2019 Item #6 Page 14 of 33 8.09.040 Exemptions. The following types of activities are exempt from the provisions of this chapter: A. Events for which a special event permit or park facility use permit has been issued pursuant to this code; B. Ambient music; C. Ambient television; D. Ambient sound; E. Entertainment conducted in connection with a theme park; F. Entertainment conducted in connection with a hotel, so long as the hotel is subject to a specific plan or master plan development. (Ord. NS-859 § 3, 2007) 8.09.050 No renewal of cabaret license. Any person or business entity holding a valid cabaret license issued before the effective date of the ordinance codified in this chapter may continue with the operation of that business until such time as that annual cabaret license expires or is revoked. Upon expiration or revocation of an annual cabaret license, an application for an entertainment license shall be submitted to the chief of police or designee pursuant to this chapter if the business desires to continue serving alcoholic beverages and providing entertainment to patrons. The transferee or purchaser of a business holding an annual cabaret license issued before the effective date of the ordinance codified in this chapter shall be required to apply for an entertainment license, pursuant to this chapter, within 30 days of the completion of the transfer or purchase of the business holding such annual cabaret license if the transferee or purchaser desires to continue serving alcohol beverages and providing entertainment to patrons. (Ord. NS-859 § 3, 2007) 8.09.060 Application/modification requirements. A. Any person or business entity desiring to obtain an entertainment license or modification shall submit a complete application to the chief of police through the Office of Community and Economic Development or designee and pay an application fee pursuant to Section 8.09.070. B. The application shall be in a form approved by the chief of police. C. The application shall be filed: 1. At least 45 days prior to the proposed operation of the entertainment establishment; 2. At least 45 days prior to the expiration of either a cabaret or entertainment license; or 3. At any time for a modification. D. The application shall state the class of entertainment (Class t aHEl---Class II and Class III) that the entertainment establishment will provide to patrons. E. The entertainment license application shall include five copies of a floor plan. The floor plan shall be an accurate representation of the floor plan approved by the city building and fire departments as part of a formal building permit process. Any changes that have occurred to the floor plan since the original city building and fire department approval shall be identified and include a March 12, 2019 Item #6 Page 15 of 33 notation identifying the date the modification was approved by the city if such approval was required. The floor plan shall show all customer seating areas, performing stages or platforms, back- of-house areas, restroom facilities, and any proposed dance areas if applying for a Class II entertainment license. The floor plan shall clearly state the legal occupant load as established as part of the formal building permit process, and all exiting systems of the premises shall be clearly shown. No floor plan change, occupant load change, or other change of use can be approved as part of an application process for an entertainment license. F. The application for an entertainment license shall include five copies of the proposed site plan for the entertainment establishment and the site plan shall be an accurate representation with dimensions that show the building's footprint, boundary and property lines and on site parking spaces. Any changes that have occurred to the site plan since the original city building and fire department approval shall be identified and include a notation identifying the date the modification was approved by the city if such approval was required. G. The application shall also include a copy of any city land use permits ( e.g., conditional use permit, redevelopment permit, etc.) issued to the property owner or business entity. H. The entertainment license application shall include a detailed security plan. The security plan should include, but is not limited to, the following: 1. The number of security personnel who will be on duty; 2. The minimum level of acceptable training for security personnel; 3. The patron screening procedure, if any, prior to admission to entertainment establishment; 4. Identify patron access points into the entertainment establishment; 5. Removal of disorderly or intoxicated patrons from premises; and 6. Dispersal of patrons from the entertainment establishment, on site parking area and/or public rights- of-way (e.g., sidewalk or street) within 50 feet of any entrance to the entertainment establishment. 8.09.070 Fees. A nonrefundable fee, as set forth in the City of Carlsbad Master Fee Schedule shall accompany each application for an entertainment license. The entertainment license fee shall be in addition to the business license fee required pursuant to Chapter 5.08 of this code. (Ord. NS-859 § 3, 2007) 8.09.080 Approval/denial/modification of entertainment license. A. Upon completion of an investigation coordinated by the Office of Community and Economic Development, the chief of police shall issue the license subject to Section 8.09.090, as applicable, unless it is found that: 1. The application fee has not been paid. 2. Applicant is less than 21 years of age. 3. The application does not conform to the provisions of this chapter. 4. The applicant has made a material misrepresentation in the application. March 12, 2019 Item #6 Page 16 of 33 5. The applicant or any of its owners, partners, officers or directors has had an entertainment license revoked within two years prior to the date of the pending application. 6. The proposed entertainment establishment does not comply with all applicable laws, including, but not limited to: health, zoning, building, and fire code requirements. Prior to granting a license, the chief of police or designee shall obtain certification from the fire chief, city planner, and building official that the proposed use is in compliance with the land use and zoning provisions of the applicable municipal code provisions and Village and Barrio Master Plan (if applicable), and that the structures are suitable and safe for the proposed operation of an entertainment establishment. B. If the chief of police denies the application, the applicant shall be notified of the reasons for the denial in writing within 45 days after receipt of the application. However, failure to notify the applicant within the specified time period shall not constitute a basis for granting the license. An applicant denied an entertainment license has a right to appeal the denial pursuant to Section 8.09.150 of this chapter. If such a hearing is not requested within the prescribed time period, the denial shall be final. C. If a conditional use permit, or any other permit or approval, except a certificate of occupancy, is required for the lawful operation of an entertainment establishment, the provisions of this chapter shall be in addition to those other permits and entitlements. An entertainment license cannot modify the terms of a conditional use permit or any other permit or approval. 8.09.090 Entertainment license standards and conditions. A. All Class t aftd-Class II and Class ill entertainment establishments shall operate in accordance with the following standards or conditions: 1. Display of License. The entertainment license shall be displayed on the premises in a conspicuous place so that law enforcement persons entering may readily see the entertainment license. A copy of the floor plan approved with the entertainment license shall be made available at all times at the request of any law enforcement officer, fire marshal or deputy fire marshal. 2. Hours of Operation. All entertainment establishments shall otherwise close and all patrons shall vacate the premises between 2:00 a.m. and 6:00 a.m. unless the entertainment license is conditioned for additional hours of closure. 3. Noise Restrictions. Noise shall be measured in accordance with Section 8.09.110. Between the hours of 10:00 p.m. and 7:00 a.m. no entertainment establishment may cause, permit or maintain noise at a sound level to the extent that the one-hour average sound level exceeds 65.0 dBA Leq-lm at the property line of the entertainment establishment of which the noise is produced. The noise subject to these limits is that part of the total noise at the specified location that is due solely to the action of said responsible party. 4. Manager and Service Training. The following persons must complete a responsible beverage service training course before the entertainment establishment may provide entertainment: March 12, 2019 Item #6 Page 17 of 33 i. Every manager must complete a responsible beverage service training course within 90 days of hire, or by January 1, 2008, whichever is later. ii. Every person who serves or sells alcoholic beverages for consumption by patrons on the premises of an entertainment establishment shall complete a responsible beverage service training course within 90 days of hire, or by January 1, 2008, whichever is later. iii. Every manager and every person who serves or sells alcoholic beverages for consumption by patrons on the premises of the entertainment establishment shall maintain a current responsible beverage service training course certificate. iv. A list of all persons employed as managers or persons who serve or sell alcoholic beverages for consumption by patrons on the premises of an entertainment establishment shall be maintained on the premises of the entertainment establishment. The list shall clearly identify the hire date, the date of each responsible beverage service training course was completed and the date the current training certificate will expire for every manager and every person who serves or sells alcoholic beverages for consumption by patrons on the premises of the entertainment establishment. The list shall be provided, upon request, to any police officer for inspection. 5. Maximum Occupant Load. The maximum number of persons in the entertainment establishment, other than employees, shall not, at any time, exceed the maximum occupant load as established by the fire marshal or the city building official. 6. Disturbing the Peace and Disorderly Conduct. The responsible party shall make reasonable efforts to prevent the admission of any person, whose conduct is described in California Penal Code Section 415 (fighting, loud noise, offensive words in public places) or PC 647 (disorderly conduct), inside the entertainment establishment, at any on site parking lot owned or under the control by the entertainment establishment, or on any sidewalk used by the entertainment establishment for the entertainment establishment. The responsible party shall make reasonable efforts to either call the police for assistance or remove from the entertainment establishment, parking lot or sidewalk persons exhibiting such conduct. 7. Maintaining Adequate Right-of-Way. The responsible party shall ensure that patrons queuing on the public sidewalk do not obstruct the right-of-way or sidewalk from vehicular or pedestrian access. The minimum clear access for sidewalks shall be maintained at 44 inches. 8. Orderly Dispersal. The responsible party shall use reasonable efforts to cause the orderly dispersal of patrons from the entertainment establishment at closing time, and shall use reasonable efforts to prevent patrons from congregating in the entertainment establishment's parking lot after closing time or permit patrons to congregate in any roadway or traffic lane within 50 feet of any entrance to the entertainment establishment. 9. Obey all federal, state and local laws. B. In addition to the conditions set forth in subsection A of this section, the chief of police may impose additional conditions in the following areas which shall be based on specific, articulated facts setting forth the necessity for the conditions: 1. The permissible hours of operation for entertainment. March 12, 2019 Item #6 Page 18 of 33 2. Specific licensing qualifications and numbers of security personnel to be on duty during business hours. 8.09.100 Class II entertainment establishment conditions. In addition to the conditions set forth in Section 8.09.090, the following conditions shall apply to all Class II entertainment establishments: A. Mandatory Security Guards. There shall be at least one security guard on duty at all times the Class II entertainment establishment is allowing dancing. B. Designation of Dance Floor. 1. The dance floor area shall be plainly marked and designated as the dancing area. 2. No dancing shall be permitted outside the designated dancing area. C. Seating and Dance Areas. Seating areas shall not be converted to dance areas, unless the floor plan approved as part of the application process allows such conversion. During all hours which dancing is permitted, no portion of the dancing area shall be used for any purpose other than dancing. (Ord. NS-859 § 3, 2007) 8.09.110 Sound or noise measurement. A. Any sound or noise level measurement shall be measured with a sound level meter using an A- weighted ( 40-phon) filter and an electrical time-constant equal to one second (i.e., "slow" meter response) pursuant to applicable manufacturer's instructions. B. The sound level meter shall be appropriately calibrated and adjusted both before and after a test to ensure meter accuracy within the tolerances set forth by the American National Standards Institute (ANSI) test designation Sl.40-1984 for Type II instrumentation. C. For outdoor measurements, the microphone shall be not less than four feet above the ground, at least four feet distant from walls or other reflecting surfaces. The sound level meter shall be either mounted to a tripod, or handheld in a manner so as not to be directly in front of the abatement officer. The sound level meter shall be protected during any test from the effects of wind noises by the use of appropriate manufacturer specified windscreens. D. The location of the any sound level measurement used for the purposes of noise abatement shall be taken at the property line of the entertainment establishment that is creating the noise source. The sound level meter shall be oriented such that the microphone is facing the noise source and is elevated approximately 45 degrees vertically with respect to the ground. Under no circumstances should a measurement be performed closer than six feet from the noise source regardless of property line orientation. E. Measurements shall be performed for a period of 60 seconds at each property line of interest using a time-energy average approach (i.e., equivalent sound level or Leq based on a meter exchange rate of three dB). Each measurement shall be logged by the abatement officer on the reporting sheet as "xx.x" dBA Leq-lm, where "xx.x" is the reading from the sound level meter. F. If the noise source is intermittent, then for each halving of the hour in which the source is expected to occur, the effective noise level at the property line can be reduced by 3.0 dBA Leq. (Ord. NS-859 § 3, 2007) 8.09.120 Immediate threat to public safety. The chief of police, fire marshal, or designee may require the responsible party to cease all or part of the entertainment establishment's operations or entertainment and disperse all patrons for a period of time up March 12, 2019 Item #6 Page 19 of 33 to and including the remainder of the entertainment establishment's daily operating hours whenever conduct by disorderly patrons reaches a magnitude that presents an immediate threat to the safety and well-being of the patrons or general public in the vicinity of the entertainment establishment. (Ord. NS- 859 § 3, 2007) 8.09.130 Term of license. A. The entertainment license shall be valid for a term of three years from the date of issuance and is not transferable. Suspension of an entertainment license shall not extend the term of the entertainment license. B. A change in ownership of the entertainment establishment shall require the new owner to pay a new application fee and secure a new entertainment license from the chief of police in accordance with Section 8.09.080. C. An entertainment license may be renewed by a new application subject to the same requirements stated herein for obtaining the initial entertainment license, including payment of an application fee. (Ord. NS-859 § 3, 2007) 8.09.140 Revocation/suspension for violation. A. The Office of Community and Economic Development chief of police may issue a letter of intent to revoke or suspend an entertainment license upon receiving satisfactory evidence that: 1. The application for an entertainment license contains material misrepresentation; or 2. Ownership of the entertainment establishment has changed without the new ownership securing a new entertainment license from the chief of police; or 3. The entertainment establishment has, within any 12-month period, been found criminally, civilly or administratively (pursuant to Chapter 1.10 of this code), or any combination thereof, to have violated three or more of the same provisions of this chapter, or four or more of any provisions of this chapter; or 4. Employees of the entertainment establishment, while on the premises are engaged in conduct or behavior to the extent that it constitutes a nuisance, including but not limited to adjudicated complaints with adverse finding(s) by the State Alcoholic Beverage Control Board or the County Health Department. B. ChiefofpoliceThe Office of Community and Economic Development shall provide written documentation or other evidence to support the intent to revoke or suspend an entertainment license to the licensee with the letter of intent to revoke or suspend an entertainment license. C. The Office of Community and Economic Development chief of police shall provide written notice of the intent to revoke or suspend to the holder of an entertainment license by personal service, or by certified mail. The notice shall be directed to the most current entertainment establishment address or other mailing address on file with the chief of police for the entertainment establishment. The notice shall provide the effective date of the revocation or suspension. No revocation or suspension shall be imposed on less than 30 days notice to the holder of the entertainment license. (Ord. NS-859 § 3, 2007) 8.09.150 Appeal procedure. A. Any applicant or entertainment establishment aggrieved by denial, suspension or revocation, or conditions of an entertainment license may file, with the city clerk, a written notice of appeal to the city manager ("Notice of Appeal") within 30 days of the notification of decision by the chief of police or designee. The notice of appeal shall specify: 1. The name and address of appellant; 2. The date of application; 3. The date of denial, suspension or revocation or condition; March 12, 2019 Item #6 Page 20 of 33 4. The factual basis for the appeal. B. Upon receipt of a complete and timely filed notice of appeal, the city manager shall schedule a hearing and set forth in writing and deliver to the applicant or licensee at the address provided in the notice of appeal, by means of registered mail, certified mail or hand delivery, that within a period of not less than five days nor more than 14 days from the date of the filing of the notice of appeal with the city clerk, a hearing shall be conducted to determine the existence of any substantial evidence which would refute the grounds for the denial, suspension, or revocation or condition of a license. The hearing notification shall include the date, time and place of the hearing. C. A hearing officer (hearing officer) appointed by the city manager shall conduct the hearing based upon the notice of appeal. The applicant or licensee may have the assistance of counsel or may appear by counsel and shall have the right to present evidence. In the event that the applicant, licensee, or counsel representing the applicant or licensee, fails to present any evidence at the hearing, the evidence of the existence of facts, which constitute grounds for the denial, suspension, or revocation or condition of the entertainment license shall be deemed uncontested. Any issue not raised in the hearing is waived. D. Relevant evidence may be admitted and considered by the hearing officer if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs. Objections to evidence shall be noted and a ruling given by the hearing officer. A copy of the recommendation of the hearing officer specifying findings of fact and the reasons for the recommendation shall be furnished to the city manager for consideration. The city manager shall notify the applicant or licensee or counsel representing the applicant or licensee of the decision regarding the appeal in writing as specified above within 10 days of the hearing officer's recommendation and shall also inform the party against whom a decision is rendered of the right to appeal to the city council pursuant to this chapter. Any decision rendered by the city manager which is not appealed within the specified time period for filing a notice to appeal to city council is final. E. Any applicant, licensee or party aggrieved by a decision of the city manager may appeal to the city council within 10 days of the date on which the decision of the city manager was sent, via certified mail to the applicant, licensee or party aggrieved. Upon the filing of a written notice of appeal of city manager's decision to city council ("Appeal to City Council") upon the city clerk, the city clerk shall schedule the appeal to city council for review by the city council as soon as practicable and advise the police chief who shall transmit to the clerk the complete record of the case. F. The city clerk shall provide notice of the appeal to city council, along with the date, time and location of the appeal to city council hearing to all parties to the appeal. The review by the city council is de novo; and the city council shall determine that all issues not raised in the appeal to city council are supported by substantial evidence. The city council shall consider the recommendations of the police chief and the hearing officer, the decision of the city manager and all other relevant documentary and oral evidence as presented to the hearing officer. The city council may affirm, modify, or reverse the action of the city manager, and make such order, as it deems appropriate and supported by substantial evidence including remand to the city manager with directions for further proceedings. Any action by the city council shall be final and conclusive; provided, however, that any action reversing the decision of the city manager shall be by the affirmative vote of at least three members of the city council. (Ord. NS-859 § 3, 2007) 8.09.160 Severability. If any section, subsection, sentence, clause or phrase of the ordinance codified in this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such March 12, 2019 Item #6 Page 21 of 33 decision shall not affect the validity of the remaining portions of the ordinance codified in this chapter. The city council declares that it would have passed the ordinance codified in this chapter and each section, subsection, sentence, clause, and phrase hereof, irrespective of the fact that any one or more of the sections, subsections, sentences, clauses or phrases hereof be declared invalid or unconstitutional. (Ord. NS-859 § 3, 2007) 8.09.170 Violation-Penalty. A. Any person who violates any of the provisions of this chapter is guilty of an infraction, except for the fourth and each additional violation of a provision of this chapter within one year, shall be a misdemeanor. Penalties for a violation of this chapter shall be as designated in Section 1.08.0l0(B) of this code. B. In addition to any other remedy authorized by this chapter, a violation of this chapter may be grounds for a revocation, suspension or denial of an entertainment license. (Ord. NS-859 § 3, 2007) March 12, 2019 Item #6 Page 22 of 33 Exhibit 3 8.09.010 Purpose. The City of Carlsbad encourages the development of arts and culture and recognizes that having many entertainment establishments provides a means for such activity. The City of Carlsbad further recognizes that having a variety of entertainment types in the city promotes a rich and diverse cultural experience. The City of Carlsbad also recognizes that entertainment establishments serving alcohol have demonstrated the potential for creating an environment where various types of disturbances, excessive noise, and disorderly conduct by inebriated patrons may occur. These negative effects are adverse to the public safety and the quality of life in the community. The purpose of this chapter is to regulate the operation of entertainment establishments so as to minimize the negative effects and to preserve the public safety, health and welfare. It is not the city's intent to regulate or restrict the type or content of entertainment provided in those establishments. All licensees will be responsible for controlling patron conduct at their entertainment establishment, making adequate provisions for security and crowd control, compliance with state and local laws and minimizing disturbances caused by the operation of an entertainment establishment. It is also the intent of the City of Carlsbad to provide alternatives to the regulating of entertainment establishments by imposing license conditions tailored to the particular entertainment establishment. (Ord. NS-859 § 3, 2007) 8.09.020 Definitions. For purposes ofthis chapter the following words and phrases shall have the following meanings: "A-weighted sound level" means the sound level in decibels as measured on a sound level meter using A-weighting network. The level is displayed in decibels and is designated either dB(A) or dBA. "ABC license" means a license to serve alcoholic beverages issued by the State of California Department of Alcoholic Beverage Control. "Ambient music" means prerecorded, low-level, background music, which is inaudible from any portion of the exterior of the premises. Ambient music does not include music played by a "disc jockey" or "DJ." "Ambient noise level" means the composite noise from all sources near and far. In this context, the ambient noise level constitutes a normal or existing level of environmental noise at a given location and time. "Ambient sound" means vibrations that travels through the air and are detectible by the ear and which are inaudible from any portion of the exterior of the premises. "Ambient television" means television programming routinely shown on broadcast, cable, satellite or other networks which now exist or which may be developed in the future which is inaudible and not visible from any portion of the exterior of the premises. "Average sound level" means a sound level typical of the sound levels at a certain place during a given period of time, averaged by the general rule of combination for sound levels, as set forth in Sl.40-1984, as amended from time to time, of the American National Standards Institute March 12, 2019 Item #6 Page 23 of 33 specifications for sound level meters. Average sound level is also called equivalent continuous sound level ("Leq"). "Cabaret license" means a cabaret license issued pursuant to Section 8.09.01 4 as it existed before the revision of this code by the enactment of this chapter, entertainment license. "Class I entertainment establishment" means a business with an ABC license offering entertainment to patrons that does not include dancing by patrons of the entertainment establishment. "Class II entertainment establishment" means a business with an ABC license offering entertainment to patrons that includes dancing by patrons of the entertainment establishment. "Class III entertainment establishment" means a business that is a public premises establishment with an ABC license offering entertainment to patrons that does not include dancing by patrons of the establishment. "Dance or dancing" means to move with rhythmical steps or movement, usually to music or an audible rhythm; except for any dance that is regulated under Chapter 8.60 (Adult Business Licenses and Operating Regulations). "Decibel (dB)" means a unit of measure of sound noise level. "Disturbing, excessive or offensive noise" means: (a) any noise which constitutes a nuisance involving discomfort or annoyance to persons of normal sensitivity residing in the area; or (b) any noise conflicting with the criteria or levels set forth in this chapter. "Entertainment" means any single event, a series of events, or an ongoing activity or business, occurring alone or as part of another business, to which the public is invited or allowed to watch, listen, or participate, or is conducted for the purposes of holding the attention of, gaining the attention of, or diverting or amusing patrons, including: 1. Dancing by patron( s) to live or recorded music. 2. The presentation of music played on sound equipment operated by an agent or contractor of the establishment, commonly known as "disc jockey" or "DJ." 3. The presentation of live music whether amplified or un-amplified. 4. The presentation of music videos, music concerts or other similar forms of musical entertainment from any source. 5. Any amusement or event such as live music or other live performance which is knowingly permitted by any entertainment establishment, including presentations by single or multiple performers, such as hypnotists, pantomimes, comedians, song or dance acts, plays, concerts, any type of contest; sporting events, exhibitions, carnival or circus acts, demonstrations of talent or items for gift or sale; shows, reviews, and any other such activity which may be attended by members of the public. "Entertainment establishment(s)" means any commercial business, except a business entity possessing a valid cabaret license or regulated by Chapter 8.60 of this code that is open to the public wherein alcoholic beverages are served, is subject to licensing by State of California Department of Alcoholic Beverage Control and offers entertainment to patrons. "Entertainment license" means a license obtained from the chief of police pursuant to the provisions of this chapter for the purposes of operating an entertainment establishment. March 12, 2019 Item #6 Page 24 of 33 "Manager" means a person, regardless of the job title or description, who has discretionary powers to organize, direct, carry on, or control the operations of an entertainment establishment, including a restaurant or bar. Authority to engage in one or more of the following functions is prima facie evidence that a person is a manager of the entertainment establishment: 1. Hire or terminate employees; 2. Contract for the purchase of furniture, equipment, or supplies, except for the occasional replenishment of stock; 3. Disburse funds of the business, except for the receipt of regularly replaced items of stock; 4. Make or participate in making policy decisions regarding operations of the entertainment establishment. ''Noise" means and includes ambient music, ambient television, ambient sound, or entertainment. ''Noise level" has the same meaning as "Sound level." "On-sale" has the same meaning as California Business and Professions Code Section 23038. "Public Premises Establishment" has the same meaning as that used in California Business and Professions Code Section 23039. "Responsible beverage service training course" means a course certified by the California Department of Alcoholic Beverage Control for on-sale management and on-sale professional services. "Responsible party" means any person who is physically at the entertainment establishment and is any of the following: 1. The person who owns the entertainment establishment; 2. The person in charge of the entertainment establishment; 3. The person using the entertainment establishment under a special arrangement; 4. An employee or agent of an owner or manager of the entertainment establishment when the owner or manager is temporarily absent from the entertaimnent establishment; 5. The entertainment establishment's manager or on-site supervisor. "Sound level" means in decibels, the weighted sound pressure level obtaiI~ed by the use of a sound level meter and frequency weighing network as specified in S 1 .40-1984, as amended from time to time, of the American National Standards Institute specifications for sound level meters. If the frequency weighting employed is not indicated, the A-weighting is implied. "Sound level meter" means an instrument, including a microphone, an amplifier, a readout, and frequency weighting networks for the measurement of sound levels, which meets or exceeds the requirements pertinent for type S2A meters in Sl.40-1984, as amended from time to time, of the American National Standards Institute specifications for sound level meters. "Sound noise level" has the same meaning as "sound level." 8.09.030 Entertainment license required. All entertainment establishments shall possess an entertainment license. (Ord. NS-859 § 3, 2007) March 12, 2019 Item #6 Page 25 of 33 8.09.040 Exemptions. The following types of activities are exempt from the provisions of this chapter: A. Events for which a special event pennit or park facility use permit has been issued pursuant to this code; B. Ambient music; C. Ambient television; D. Ambient sound; E. Entertainment conducted in connection with a theme park; F. Entertainment conducted in connection with a hotel, so long as the hotel is subject to a specific plan or master plan development. (Ord. NS-859 § 3, 2007) 8.09.050 No renewal of cabaret license. Any person or business entity holding a valid cabaret license issued before the effective date of the ordinance codified in this chapter may continue with the operation of that business until such time as that annual cabaret license expires or is revoked. Upon expiration or revocation of an annual cabaret license, an application for an entertainment license shall be submitted to the chief of police or designee pursuant to this chapter if the business desires to continue serving alcoholic beverages and providing entertainment to patrons. The transferee or purchaser of a business holding an annual cabaret license issued before the effective date of the ordinance codified in this chapter shall be required to apply for an entertainment license, pursuant to this chapter, within 30 days of the completion of the transfer or purchase of the business holding such annual cabaret license if the transferee or purchaser desires to continue serving alcohol beverages and providing entertainment to patrons. (Ord. NS-859 § 3, 2007) 8.09.060 Application/modification requirements. A. Any person or business entity desiring to obtain an entertainment license or modification shall submit a complete application to the chief of police through the Office of Community and Economic Development and pay an application fee pursuant to Section 8.09.070. B. The application shall be in a form approved by the chief of police. C. The application shall be filed: 1. At least 45 days prior to the proposed operation of the entertainment establishment; 2. At least 45 days prior to the expiration of either a cabaret or entertainment license; or 3. At any time for a modification. D. The application shall state the class of entertainment (Class I, Class II or Class III) that the entertainment establishment will provide to patrons. E. The entertainment license application shall include five copies of a floor plan. The floor plan shall be an accurate representation of the floor plan approved by the city building and fire departments as part of a formal building permit process. Any changes that have occurred to the floor plan since the original city building and fire department approval shall be identified and include a March 12, 2019 Item #6 Page 26 of 33 notation identifying the date the modification was approved by the city if such approval was required. The floor plan shall show all customer seating areas, performing stages or platforms, back- of-house areas, restroom facilities, and any proposed dance areas if applying for a Class II entertainment license. The floor plan shall clearly state the legal occupant load as established as part of the formal building pennit process, and all exiting systems of the premises shall be clearly shown. No floor plan change, occupant load change, or other change of use can be approved as part of an application process for an entertainment license. F. The application for an entertainment license shall include five copies of the proposed site plan for the entertainment establishment and the site plan shall be an accurate representation with dimensions that show the building's footprint, boundary and property lines and on site parking spaces. Any changes that have occurred to the site plan since the original city building and fire department approval shall be identified and include a notation identifying the date the modification was approved by the city if such approval was required. G. The application shall also include a copy of any city land use permits ( e.g., conditional use permit, redevelopment permit, etc.) issued to the property owner or business entity. H. The entertainment license application shall include a detailed security plan. The security plan should include, but is not limited to, the following: 1. The number of security personnel who will be on duty; 2. The minimum level of acceptable training for security personnel; 3. The patron screening procedure, if any, prior to admission to entertainment establishment; 4. Identify patron access points into the entertainment establishment; 5. Removal of disorderly or intoxicated patrons from premises; and 6. Dispersal of patrons from the entertainment establishment, on site parking area and/or public rights-of-way ( e.g., sidewalk or street) within 50 feet of any entrance to the entertainment establishment. 8.09.070 Fees. A nonrefundable fee, as set forth in the City of Carlsbad Master Fee Schedule shall accompany each application for an entertainment license. The entertainment license fee shall be in addition to the business license fee required pursuant to Chapter 5.08 of this code. (Ord. NS-859 § 3, 2007) 8.09.080 Approval/denial/modification of entertainment license. A. Upon completion of an investigation coordinated by the Office of Community and Economic Development, the chief of police shall issue the license subject to Section 8.09.090, as applicable, unless it is found that: 1. The application fee has not been paid. 2. Applicant is less than 21 years of age. 3. The application does not conform to the provisions of this chapter. 4. The applicant has made a material misrepresentation in the application. March 12, 2019 Item #6 Page 27 of 33 5. The applicant or any of its owners, partners, officers or directors has had an entertainment license revoked within two years prior to the date of the pending application. 6. The proposed entertainment establishment does not comply with all applicable laws, including, but not limited to: health, zoning, building, and fire code requirements. Prior to granting a license, the chief of police or designee shall obtain certification from the fire chief, city planner, and building official that the proposed use is in compliance with the land use and zoning provisions of the applicable municipal code provisions and Village and Barrio Master Plan (if applicable), and that the structures are suitable and safe for the proposed operation of an entertainment establishment. B. If the chief of police denies the application, the applicant shall be notified of the reasons for the denial in writing within 45 days after receipt of the application. However, failure to notify the applicant within the specified time period shall not constitute a basis for granting the license. An applicant denied an entertainment license has a right to appeal the denial pursuant to Section 8.09.150 of this chapter. If such a hearing is not requested within the prescribed time period, the denial shall be final. C. If a conditional use permit, or any other permit or approval, except a certificate of occupancy, is required for the lawful operation of an entertainment establishment, the provisions of this chapter shall be in addition to those other permits and entitlements. An entertainment license cannot modify the terms of a conditional use permit or any other permit or approval. 8.09.090 Entertainment license standards and conditions. A. All Class I, Class II and Class ill entertainment establishments shall operate in accordance with the following standards or conditions: 1. Display of License. The entertainment license shall be displayed on the premises in a conspicuous place so that law enforcement persons entering may readily see the entertainment license. A copy of the floor plan approved with the entertainment license shall be made available at all times at the request of any law enforcement officer, fire marshal or deputy fire marshal. 2. Hours of Operation. All entertainment establishments shall otherwise close and all patrons shall vacate the premises between 2:00 a.m. and 6:00 a.m. unless the entertainment license is conditioned for additional hours of closure. 3. Noise Restrictions. Noise shall be measured in accordance with Section 8.09.110. Between the hours of 10:00 p.m. and 7:00 a.m. no entertainment establishment may cause, permit or maintain noise at a sound level to the extent that the one-hour average sound level exceeds 65.0 dBA Leq-lm at the property line of the entertainment establishment of which the noise is produced. The noise subject to these limits is that part of the total noise at the specified location that is due solely to the action of said responsible party. 4. Manager and Service Training. The following persons must complete a responsible beverage service training course before the entertainment establishment may provide entertainment: March 12, 2019 Item #6 Page 28 of 33 i. Every manager must complete a responsible beverage service training course within 90 days of hire, or by January 1, 2008, whichever is later. ii. Every person who serves or sells alcoholic beverages for consumption by patrons on the premises of an entertainment establishment shall complete a responsible beverage service training course within 90 days of hire, or by January 1, 2008, whichever is later. 111. Every manager and every person who serves or sells alcoholic beverages for consumption by patrons on the premises of the entertainment establishment shall maintain a current responsible beverage service training course certificate. iv. A list of all persons employed as managers or persons who serve or sell alcoholic beverages for consumption by patrons on the premises of an entertainment establishment shall be maintained on the premises of the entertaimnent establishment. The list shall clearly identify the hire date, the date of each responsible beverage service training course was completed and the date the current training certificate will expire for every manager and every person who serves or sells alcoholic beverages for consumption by patrons on the premises of the entertainment establishment. The list shall be provided, upon request, to any police officer for inspection. 5. Maximum Occupant Load. The maximum number of persons in the entertainment establishment, other than employees, shall not, at any time, exceed the maximum occupant load as established by the fire marshal or the city building official. 6. Disturbing the Peace and Disorderly Conduct. The responsible party shall make reasonable efforts to prevent the admission of any person, whose conduct is described in California Penal Code Section 415 (fighting, loud noise, offensive words in public places) or PC 647 (disorderly conduct), inside the entertainment establishment, at any on site parking lot owned or under the control by the entertainment establishment, or on any sidewalk used by the entertainment establishment for the entertainment establishment. The responsible party shall make reasonable efforts to either call the police for assistance or remove from the entertainment establishment, parking lot or sidewalk persons exhibiting such conduct. 7. Maintaining Adequate Right-of-Way. The responsible party shall ensure that patrons queuing on the public sidewalk do not obstruct the right-of-way or sidewalk from vehicular or pedestrian access. The minimum clear access for sidewalks shall be maintained at 44 inches. 8. Orderly Dispersal. The responsible party shall use reasonable efforts to cause the orderly dispersal of patrons from the entertainment establishment at closing time, and shall use reasonable efforts to prevent patrons from congregating in the entertainment establishment's parking lot after closing time or permit patrons to congregate in any roadway or traffic lane within 50 feet of any entrance to the entertainment establishment. 9. Obey all federal, state and local laws. B. In addition to the conditions set forth in subsection A of this section, the chief of police may impose additional conditions in the following areas which shall be based on specific, articulated facts setting forth the necessity for the conditions: 1. The permissible hours of operation for entertainment. March 12, 2019 Item #6 Page 29 of 33 2. Specific licensing qualifications and numbers of security personnel to be on duty during business hours. 8.09.100 Class II entertainment establishment conditions. In addition to the conditions set forth in Section 8.09.090, the following conditions shall apply to all Class II entertainment establishments: A. Mandatory Security Guards. There shall be at least one security guard on duty at all times the Class II entertainment establishment is allowing dancing. B. Designation of Dance Floor. 1. The dance floor area shall be plainly marked and designated as the dancing area. 2. No dancing shall be permitted outside the designated dancing area. C. Seating and Dance Areas. Seating areas shall not be converted to dance areas, unless the floor plan approved as part of the application process allows such conversion. During all hours which dancing is permitted, no portion of the dancing area shall be used for any purpose other than dancing. (Ord. NS-859 § 3, 2007) 8.09.110 Sound or noise measurement. A. Any sound or noise level measurement shall be measured with a sound level meter using an A- weighted (40-phon) filter and an electrical time-constant equal to one second (i.e., "slow" meter response) pursuant to applicable manufacturer's instructions. B. The sound level meter shall be appropriately calibrated and adjusted both before and after a test to ensure meter accuracy within the tolerances set forth by the American National Standards Institute (ANSI) test designation S 1 .40-1984 for Type II instrumentation. C. For outdoor measurements, the microphone shall be not less than four feet above the ground, at least four feet distant from walls or other reflecting surfaces. The sound level meter shall be either mounted to a tripod, or handheld in a manner so as not to be directly in front of the abatement officer. The sound level meter shall be protected during any test from the effects of wind noises by the use of appropriate manufacturer specified windscreens. D. The location of the any sound level measurement used for the purposes of noise abatement shall be taken at the property line of the entertainment establishment that is creating the noise source. The sound level meter shall be oriented such that the microphone is facing the noise source and is elevated approximately 45 degrees vertically with respect to the ground. Under no circumstances should a measurement be performed closer than six feet from the noise source regardless of property line orientation. E. Measurements shall be performed for a period of 60 seconds at each property line of interest using a time-energy average approach (i.e., equivalent sound level or Leq based on a meter exchange rate of three dB). Each measurement shall be logged by the abatement officer on the reporting sheet as "xx.x" dBA Leq-lm, where "xx.x" is the reading from the sound level meter. F. If the noise source is intermittent, then for each halving of the hour in which the source is expected to occur, the effective noise level at the property line can be reduced by 3.0 dBA Leq. (Ord. NS-859 § 3, 2007) 8.09.120 Immediate threat to public safety. The chief of police, fire marshal, or designee may require the responsible party to cease all or part of the entertainment establishment's operations or entertainment and disperse all patrons for a period of time up March 12, 2019 Item #6 Page 30 of 33 to and including the remainder of the entertainment establishment's daily operating hours whenever conduct by disorderly patrons reaches a magnitude that presents an immediate threat to the safety and well-being of the patrons or general public in the vicinity of the entertainment establishment. (Ord. NS- 859 § 3, 2007) 8.09.130 Term of license. A. The entertainment license shall be valid for a term of three years from the date of issuance and is not transferable. Suspension of an entertainment license shall not extend the term of the entertainment license. B. A change in ownership of the entertainment establishment shall require the new owner to pay a new application fee and secure a new entertainment license from the chief of police in accordance with Section 8.09.080. C. An entertainment license may be renewed by a new application subject to the same requirements stated herein for obtaining the initial entertainment license, including payment of an application fee. (Ord. NS-859 § 3, 2007) 8.09.140 Revocation/suspension for violation. A. The Office of Community and Economic Development may issue a letter of intent to revoke or suspend an entertainment license upon receiving satisfactory evidence that: 1. The application for an entertainment license contains material misrepresentation; or 2. Ownership of the entertainment establishment has changed without the new ownership securing a new entertainment license from the chief of police; or 3. The entertainment establishment has, within any 12-month period, been found criminally, civilly or administratively (pursuant to Chapter 1.10 of this code), or any combination thereof, to have violated three or more of the same provisions of this chapter, or four or more of any provisions of this chapter; or 4. Employees of the entertainment establishment, while on the premises are engaged in conduct or behavior to the extent that it constitutes a nuisance, including but not limited to adjudicated complaints with adverse finding(s) by the State Alcoholic Beverage Control Board or the County Health Department. B. The Office of Community and Economic Development shall provide written documentation or other evidence to support the intent to revoke or suspend an entertainment license to the licensee with the letter of intent to revoke or suspend an entertainment license. C. The Office of Community and Economic Development shall provide written notice of the intent to revoke or suspend to the holder of an entertainment license by personal service, or by certified mail. The notice shall be directed to the most current entertainment establishment address or other mailing address on file with the chief of police for the entertainment establishment. The notice shall provide the effective date of the revocation or suspension. No revocation or suspension shall be imposed on less than 30 days notice to the holder of the entertainment license. (Ord. NS-859 § 3, 2007) 8.09.150 Appeal procedure. A. Any applicant or entertainment establishment aggrieved by denial, suspension or revocation, or conditions of an entertainment license may file, with the city clerk, a written notice of appeal to the city manager ("Notice of Appeal") within 30 days of the notification of decision by the chief of police or designee. The notice of appeal shall specify: 1. The name and address of appellant; 2. The date of application; 3. The date of denial, suspension or revocation or condition; March 12, 2019 Item #6 Page 31 of 33 4. The factual basis for the appeal. B. Upon receipt of a complete and timely filed notice of appeal, the city manager shall schedule a hearing and set forth in writing and deliver to the applicant or licensee at the address provided in the notice of appeal, by means of registered mail, certified mail or hand delivery, that within a period of not less than five days nor more than 14 days from the date of the filing of the notice of appeal with the city clerk, a hearing shall be conducted to determine the existence of any substantial evidence which would refute the grounds for the denial, suspension, or revocation or condition of a license. The hearing notification shall include the date, time and place of the hearing. C. A hearing officer (hearing officer) appointed by the city manager shall conduct the hearing based upon the notice of appeal. The applicant or licensee may have the assistance of counsel or may appear by counsel and shall have the right to present evidence. In the event that the applicant, licensee, or counsel representing the applicant or licensee, fails to present any evidence at the hearing, the evidence of the existence of facts, which constitute grounds for the denial, suspension, or revocation or condition of the entertainment license shall be deemed uncontested. Any issue not raised in the hearing is waived. D. Relevant evidence may be admitted and considered by the hearing officer if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs. Objections to evidence shall be noted and a ruling given by the hearing officer. A copy of the recommendation of the hearing officer specifying findings of fact and the reasons for the recommendation shall be furnished to the city manager for consideration. The city manager shall notify the applicant or licensee or counsel representing the applicant or licensee of the decision regarding the appeal in writing as specified above within 10 days of the hearing officer's recommendation and shall also inform the party against whom a decision is rendered of the right to appeal to the city council pursuant to this chapter. Any decision rendered by the city manager which is not appealed within the specified time period for filing a notice to appeal to city council is final. E. Any applicant, licensee or party aggrieved by a decision of the city manager may appeal to the city council within 10 days of the date on which the decision of the city manager was sent, via certified mail to the applicant, licensee or party aggrieved. Upon the filing of a written notice of appeal of city manager's decision to city council ("Appeal to City Council") upon the city clerk, the city clerk shall schedule the appeal to city council for review by the city council as soon as practicable and advise the police chief who shall transmit to the clerk the complete record of the case. F. The city clerk shall provide notice of the appeal to city council, along with the date, time and location of the appeal to city council hearing to all parties to the appeal. The review by the city council is de novo; and the city council shall determine that all issues not raised in the appeal to city council are supported by substantial evidence. The city council shall consider the recommendations of the police chief and the hearing officer, the decision of the city manager and all other relevant documentary and oral evidence as presented to the hearing officer. The ·city council may affirm, modify, or reverse the action of the city manager, and make such order, as it deems appropriate and supported by substantial evidence including remand to the city manager with directions for further proceedings. Any action by the city council shall be final and conclusive; provided, however, that any action reversing the decision of the city manager shall be by the affirmative vote of at least three members of the city council. (Ord. NS-859 § 3, 2007) 8.09.160 Severability. If any section, subsection, sentence, clause or phrase of the ordinance codified in this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such March 12, 2019 Item #6 Page 32 of 33 decision shall not affect the validity of the remaining portions of the ordinance codified in this chapter. The city council declares that it would have passed the ordinance codified in this chapter and each section, subsection, sentence, clause, and phrase hereof, irrespective of the fact that any one or more of the sections, subsections, sentences, clauses or phrases hereof be declared invalid or unconstitutional. (Ord. NS-859 § 3, 2007) 8.09.170 Violation-Penalty. A. Any person who violates any of the provisions of this chapter is guilty of an infraction, except for the fourth and each additional violation of a provision of this chapter within one year, shall be a misdemeanor. Penalties for a violation of this chapter shall be as designated in Section 1.08.0l 0(B) of this code. B. In addition to any other remedy authorized by this chapter, a violation of this chapter may be grounds for a revocation, suspension or denial of an entertaimnent license. (Ord. NS-859 § 3, 2007) March 12, 2019 Item #6 Page 33 of 33 Morgen Fry All Receive -Ageri.~a Item ff W For the lnforn,~iQ.11 0.f:tbe: CITY CQY,N.~11,. ✓ Subject: Date:SF CM "/ COO V FW: In re Ordinance amending CMC, Chapter 8.09. Entertainment Lice·nse -. - "M"'' c,. . From : simon angel Sent: Monday, March 11, 2019 11:07 AM To: Council Internet Email <CityCouncil@carlsbadca.gov>; Manager Internet Email <Manager@CarlsbadCA.gov>; Claudia Huerta <Claudia.H uerta@carlsbadca.gov>; Christie.Marcella@carlsbadca.gov Claudia.Huerta@carlsbadca.gov; Diana Diana ; michael ajdour Michele Montenez ; T. j. Childs ; Mary Anne Viney ; Amanda Mascia Patricia Amador lisa mckethan Subject: In re Ordinance amending CMC, Chapter 8.09. Entertainment License The Barrio Carlsbad Community Advocates are opposed to this proposed ordinance. This ordinance was prepared by and for strictly business interests(paragraph 4,page 3 of 33). as a result of an outreach meeting with "10 business owners and representatives from eight business establishments". There was no such meeting of Barrio residents for public outreach or participation. Over the years Barrio residents have been dealing with the impacts of persons walking through the Barrio Districts after a night in the Village night spots. Inebriated persons getting sick in front yards, relieving themselves, loud and inappropriate conduct and music from the downtown Village night spots serving alcohol. It is important to point out that Barrio Carlsbad is a culturally sensitive area and we disagree with the Police Department opinion that this ordinance would have no adverse effect on public safety(paragraph 2,page 2 of 33) or quality of life. We believe that there has been no public outreach that we are aware of, for residents of Barrio Carlsbad to provide input or propose changes to this ordinance. This ordinance is an effort to provide uniformity and consistency throughout the city without regard to its impact on the Barrio community. The Environmental Evaluation indicates that there is no potential to cause either a direct physical change in the environment etc ... We disagree. Residents of Barrio Carlsbad are also a part of the environment, historically and culturally. Any actions on the part of the city that may adversely impact our community should be subject, at the very least, to an opportunity to address such action at a meeting to accept public input on the matter at hand. The problem in the preparation of this ordinance is that the public outreach conducted did not include residents of the Barrio. It was limited to "individual business meetings and group stakeholder meeting". For these reasons, we ask and will request at the City Council meeting of March 12, 2019, that consideration of this ordinance be tabled pending action by the city to hold public outreach meetings to allow Barrio Carlsbad residents to provide input and propose amendments to this ordinance. S IA'J101lllA ~ 13CCA 1 Claudia Huerta, Village Manager Greg Koran, Police Lieutenant March 12, 2019 Entertainment License Amendments Recommended Action •Approve amendments to the citywide Entertainment License Ordinance •Introduce amendments to Chapter 8.09 of the City Municipal Code to update eligibility criteria and administrative process guidelines Agenda •Citywide Entertainment License Ordinance •Need for Amendments •Proposed Amendments Entertainment License Ordinance •The City’s entertainment ordinance provides guidelines for all business establishments with an ABC license seeking to provide live entertainment. –Businesses shall apply for an entertainment license before they start providing entertainment. –If a business with an active entertainment license changes ownership, the new owners must reapply for a new entertainment license. Entertainment License Ordinance Entertainment is considered to be any single event, a series of events, or an ongoing activity, to which the public is invited or allowed to watch, listen, or participate in activities including: –Dancing to live or recorded music –Music played by a DJ –Live music by single or multiple performers –Music presented by videos, music concerts or other similar forms of musical entertainment from any source –Other entertainment performers, such as hypnotists, pantomimes, comedians, song or dance acts, plays, concerts, any type of contest; sporting events, exhibitions, carnival or circus acts, demonstrations of talent or items for gift or sale; shows, reviews, etc. Entertainment License Ordinance •License Cost -$229 •License Duration -3 years •Entertainment license applications are reviewed by building, fire, planning and police •Types of Licenses –Class I -a business with an ABC license offering entertainment to patrons that does not include dancing by patrons of the entertainment establishment. –Class II -a business with an ABC license offering entertainment to patrons that includes dancing by patrons of the entertainment establishment. Need for Amendments •Since the latest update to Chapter 8.09 Entertainment License in 2007 various businesses owners have expressed the need for additional criteria and improved clarity in the application submission process. •Recent trends in active commercial spaces have increased market demands for businesses to provide more experiential options for customers. •Live entertainment is a great way to create a special ambiance that entices customers to visit businesses more regularly. Proposed Amendments 1.Expand the business type eligibility criteria by adding the following definitions to Section 8.09.020: –“Class III entertainment establishment” means a business that is a public premises establishment with an ABC license offering entertainment to patrons that does not include dancing by patrons of the establishment. –“Public Premises Establishment” has the same meaning as that used in California Business and Professions Code Section 23039 which is essentially a business establishment licensed to sell and serve alcoholic beverages to the public for consumption on the premises, and which is not a bona fide eating establishment but where food products may be sold or served incidentally to the sale of alcoholic beverages. Proposed Amendments 2.Change the administrative routing process from the police department to the Community and Economic Development Department to enhance the level of service to applicants by updating Sections 8.09.060, 8.09.080, 8.09.09. Recommended Action •Approve amendments to the citywide Entertainment License Ordinance •Introduce amendments to Chapter 8.09 to the City Municipal Code to update eligibility criteria and administrative process guidelines