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HomeMy WebLinkAboutNS-1081ORDINANCE NS-1081 AMENDING THE SANTA ANA MUNICIPAL CODE BY AMENDING CHAPTER 12 THEREOF BY ADDING ARTICLES II AND III PROVIDING FOR REGULATION OF THEATERS THE CITY COUNCIL OF ~THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1: That Chapter 12 of the Santa Ana Municipal Code is hereby amended by adding~Article II thereto to read in words and figures, as follows: ARTICLE II - PEEP SHOW ESTABLISHMENTS Section 12-21. Peep Show Establishments: Purpose and Intent. It is the purpose and intent of the City Council that the operation of peep show establishments, as defined in this code, should be regulated for the protection of the public from the perils of fire, hazard to health, and for the preservation of the peace of the community. Section 12-22. Definitions. (a) "Peep show establishment" shall mean any place in which a peep show device is operated. (b) "Peep show device" shall mean an aperture through which may be viewed images that are exhibited by means of the pro- jection or internal electronic reflection of motion picture film, or slides, or both. Section 12-23. Permit. No person shall operate a peep show device unless a permit for the operation of said device has been issued by the Finance Department of the City and remains in effect in conformity with the provisions of this Code. Section 12-24. Permit Term. No permit shall be issued by the Finance Department for a period in excess of six (6) months. The expiration dates of said permit shall be June 30th and December 31 of each year. Section 12-25. Permit Fee. Every person owning or operating a peep show device shall pay a fee of twelve dollars ($12.00) per six (6) months' period for each peep show device. Any person applying for a permit for a period of less than six (6) months shall pay a prorated fee. Section 12-26. Applications for Permit - Investiqation Fee. Ail applications for a permit, or for the renewal of a permit, shall be accompanied by an investigation fee in the sum Of ten dollars ($10.00). In the event the permit is granted or renewed, the sum shall be applied to the permit fee as described in Section 12-25. In the event such permit is denied, said application fee shall be and become the property of the City of Santa Ana. - 1 - Sec. 12-27. Permit: Investigation. Every applicant shall file an application for a permit, or for the renewal of a permit, with the Finance Department of the City of Santa Ana upon the form to be provided by the Finance Department. Immediately upon the receipt of an application the Finance Department shall deliver said appli- cation to the City Manager or his delegate. The City Manager or his delegate shall cause to be made an investigation of the application to determine that: (a) ~he applicant did not knowingly make a material mis- statement in the application for a permit or for the renewal of a permit; and (b) The operation pursuant to the issuance or renewal of a permit will be in compliance with the building, fire, electrical, plumbing and health requirements as set forth in this Code; and (c) The operation pursuant to the issuance of a permit will be in compliance with all applicable laws. Sec. 12-28. Issuance or Denial of Permit. If, upon investigation, the City Manager, or his delegate, finds that the operation pursuant to the issuance or renewal of a permit will be in compliance with the requirements described in Section 12-27 the permit shall be granted or renewed. Any application for a permit or for the renewal of a permit may be denied if, after the applicant has been given the opportunity for a hearing as described in Section 12-30 the City Manager or his delegate finds that the operation pursuant to the issuance or renewal of a permit will not be in compliance with the requirements described in Section 12-30. The City Manager or his delegate, shall file a report of the approval or denial of the application with the Finance Department within thirty (30) days of the receipt of said application. If the application for a permit or for the renewal of a permit is denied, the notification and reasons for denial shall be set forth in writing and sent to the applicant by means of registered mail, certified mail, or hand delivery. Sec. 12-29. Suspension or Revocation of Permit. Any permit issued hereunder may be suspended or revoked if, after the permittee has been given the opportunity for a hearing as described in Section 12-30, the City Manager, or his delegate, finds that: (a) The permittee knowingly made a material misstatement in the application for the permit or for the renewal of a permit; or (b) The permittee violated any one of the requirements as set forth in this Code which define building, fire, electrical, plumbing or health standards; or (c) The operation pursuant to the permit will not be in compliance with all applicable laws. In the event that a permit is suspended or revoked, the notifi-i cation of suspension or revocation, as well as the reasons there- fore, shall be set forth in writing and sent to the permittee by means of registered mail, certified mail, or hand delivery. -2- Section 12-30. Hearinq. In the event that the City Manager or his delegate has evidence that any of the requirements described in Sections 12-26 and 12-29 have not been complied with, he shall set forth in writing and send to the applicant or permittee, by means of registered mail, or hand delivery, notice that w~hin a period of not less than five (5) days from the date of the posting of said notice, a hearing shall be conducted to determine the existence of any facts which constitute grounds for the denial of a permit or permit renewal, the suspension or revocation of a permit. The notification shall include the date, time and place of the hearing as well as a statement of the facts relevant to the case. The hearing shall be conducted by a hearing officer appointed by the City Manager. The applicant or permittee 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 or permittee~ fails to appear at the hearing, the evidence of the existence of facts which constitute grounds for the denial of a permit or permit renewal, the suspension of a permit or the revocation of a permit, shall be considered unrebutted. Section 12-31. Appeal. Within ten (10) days a~cer the date of posting the notification that an application for a permit has been denied, a permit suspended or revoked, or a renewal denied, the applicant or permittee may file with the Clerk of the Council a written request for a public hearing before the City Council. Upon the filing of such request, the Clerk of the Council shall set a time and place for hearing and shall notify the appellant thereof. The hearing shall be held within thirty (30) days after the request is filed. At the hearing any person may present evidence in opposition to or in support of, appellant's case. At the conclusion of the hearing the City Council shall either grant or deny the appeal and the decision of the City Council shall be final. Section 12-32. No permit One Year After Revocation. No person who has a permit for a peep show device revoked may obtain a peep show device permit within a period of twelve (12) months from the date of revocation. Section 12-33. Permit Affixed to Device. No person shall operate a peep show device unless each such device is plainly marked with a serial number and shall have attached thereto a distinguishing tag, sign, permit or other marker issued by the Finance Department upon the granting or renewal of a permit, which shall bear a permit number identifying the peep show device as a particular device per- mitted p~rsuant to the terms of this Code. Such permit shall be affixed in.a conspicuous.location on each device and shall remain thereto until a new or different permit has been issued therefor. No permit shall be transferable from one person to another or from one device to another. Section 12-34. Wall, Partition construction NO person shall operate a peep show establishment unless any wall or partition which is situated so as to create a room, enclosure or booth in which any peep show device is located is constructed of not less than one hour fire-resistive material. Section 12-35. Minimum Aisle Width. No person shall operate a peep show establishment in which the width of the aisles in any room where a peep show device is located is less than forty-two (42) inches. Section 12-36. Minimum Doorways. No person shall operate a peep show establishment unless there are no fewer than two doorways of a width no less than thirty-six (36) inches which provide ingress or egress from any room in which a peep show device is located, provided, however, that one (1) doorway shall be sufficient in the event the Fire Chief should so determine. Doorway or doorways shall be unlocked during business hours. Section 12-37. Lighted Exit Signs. No person shall operate a peep show establishment unless over every doorway which provides egress from any room in which a peep show device is located, an internally illuminated exit sign with letters at least five (5) inches in height is maintained. Section 12-38. Patron View of Doorway. No person shall operate a peep show establishment unless each peep show device located in such establishment is situated so as to permit the person using the peep show device to have a constantly unobstructed view of the doorway or doorways which provide ingress to or egress from the establishment. Section 12-39. Minimum Lighting. No person shall operate a peep show establishment unless a light level of no less than ten (10) foot candles at floor level is maintained in every portion of said establishment to which the public is admitted. Section 12-40. Maximum Occupancy Load. No person shall operate a peep show establishment in which the number of persons in any room or partitioned portion of a room where a peep show device is located exceeds one person per thirty (30) square feet. The maximum occupancy load permitted in any room or partitioned portion of a room in which a peep show device is located shall be conspicuously posted by the operator, and shall remain posted, at the entrance to said room. Section 12-41. Maximum Number of devices. No person shall operate a peep show establishment in which the nuaf0er of peep show devices exceeds the maximum occupancy load permitted in any room or partitioned portion of a room in which a peep show device is located. The maximum number of peep show devices permitted in any room or partitioned portion of a room in a peep show establishment shall be conspicuously posted by the operator, and shall remain posted, at the entrance to said room. Section 12-42. Free Access to City Manager or Deleqate. No person shall deny the City Manager or his delegate free access to a peep show establishment for purposes of a reasonable inspection to enforce compliance with building, fire, electrical, or plumbing regulations. - 4 - Sec. 12-43. Injunctive Relief. In addition to the legal remedies provided for in this Code, the operation of any peep show establishment in violation of the terms of this Code shall be deemed a public nuisance and may be, by the City of Santa, enjoined. -5- ARTICLE III REGULATION OF THEATERS Sec. 12-100. Exclusive Regulation. Notwithstanding any other provision of this Code to the contrary, the provisions of this Article shall govern the regulation of theaters. Sec. 12-101. Definitions. For the purpose of this Article, the following words and phrases shall mean and include: (a) Theater. A building or part of a building intended to be used for the specific purpose of presenting entertainment as defined herein, or displaying motion pictures, slides, or television pictures, including peep shows as defined in Section 21-22 of this Chapter, before an assemblage of persons, whether such assemblage be of a public, restricted or private nature. (b) Entertainment. Any act, play, revue, pantomime, scene, song, dance act, or song and dance act, conducted or partici- pated in by one or more persons, whether or not such person or persons are compensated for such performance. (c) Entertainment, continued. Entertainment also includes a fashion or style show, except when conducted by a bona fide nonprofit club or organization as a part of the social activities of such club or organization, and when conducted solely as a fund-raising activity for charitable purposes. (d) Person. An individual, firm, partnership, joint venture, association, social club, fraternal organization, joint stock company, corporation, estate, trust, business trust, receiver, trustee, syndicate, or any other group or combination acting as a unit excepting the United States of America, the State of Cali- fornia, and any political subdivision of either thereof. (e) Operator. Any person operating a theater in the C~ty of Santa Ana including, but not limited to, the owner or proprietor of such premises, lessee, sublessee, mortgagee in possession, permittee or any other person operating such theater or motion picture theater. (f) ~ona ~i~l~knonprofit cl%~b or orqan~tion. Any fraternal charitable, religious~Q~ ~enevolent ctub~or orgahization Which is ~x~mD~ fromtaxation under the internal Revenue laws of the Unlt%d States. (g) Admission Charge. Any charge for the right or privilege to enter any theater including a minimum service charge, cover charge or a charge made for the use of seats and/or tables. Sec. 12-102. Permit Required. It shall be unlawful for any person to own, conduct, operate, maintain or to participate therein, or to cause or permit to be conducted, operated or maintained, any theater in the City of Santa Ana without first having obtained a permit from the City Manager as provided in this Article. Any place or premises for which a permit to operate is sought must conform to all existing health, safety, zoning and fire ordinances of the City of Santa Ana. -6- Sec. 12-103. Procedure on Application. Every person desiring a permit pursuant to this Article shall file an application with the City Clerk upon a form provided by said Clerk and shall pay a filing fee of FIFTY ($50.00) DOLLARS. The application shall specify: (a) The address of the location for which the permit is required, together with the business name of such location. (b) The name and proposed business address of the applicant. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorpo- ration; and the applicant shall also set forth the date and place of incorporation, the names and residence addresses of each of the officers, directors, and each stockholder owning more than ten (10) percent of the stock of the corporation. If the applicant is a partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. If one or more of the partners is a corporation, the provisions of this section pertaining to a cor- porate applicant apply as to such partner or partners. (c) Whether or not the applicant or any officer or director or member of applicant, as the case may be, has ever been con- victed of any crime except misdemeanor traffic violations. In Addition to the foregoing, any corporate applicant will state whether or not any stockholder owning more than ten (10) percent of the stock of such corporation has ever been convicted of any crime except misdemeanor traffic violations. If any person mentioned in this subsection has been so convicted, a statement must be made giving the name of the person so convicted, the place and court in which the conviction was had, the specific charge under which the conviction was obtained, and the sentence imposed as a result of said conviction. (d) The names and addresses of the persons who have authority or control over the place for which the permit is requested, and a brief statement of the nature and extent of such authority and control. (e) Such information pertinent to the operation of the proposed activity, including information as to management, authority control, financial agreements, and lease arrangements, as the City Manager may require of an applicant in addition to the other requirements of this section. The fore~ing examples are in explanation and not in limitation of the information which the City Manager may require. (f) The address to which notice, when required, is to be sent or mailed, and the name and address of a person authorized to accept service of process, if not otherwise set forth herein. (g) Whether the application is for a new permit or for the renewal of an existing permit. (h) The City Manager may require further information as he deems necessary. Sec. 12-104. Verification of Application. Every application for a permit under this Article shall be verified as provided in the California Code of Civil Procesure for the verification of pleadings. -7- Sec. 12-105. Procedure on Application. When an application is filed for a permit under this Article, the Clerk of the Council shall place the verified copy in the permanent records of her office, refer one copy to the City Manager, and one copy to the following officials: Chief of Police, Fire Chief, Director of Planning, Director of Building Safety and Housing. Each of the officials to whom a copy of the application is referred shall make such investi- gation of the application as he shall deem advisable and shall make a written report of such investigation, together with his recommendations relative to disposal of the application, to the City Manager who shall proceed to act up6n said application after a hearing set by the Clerk of the Council for a date certain not less than five (5) nor more than thirty (30) days from the date of filing such application. At such hearing, all persons interested shall be entitled to file ob- jections, protests or recommendations in the premises and be heard. Such hearing may, by the City Manager, be continued over from time to time as circumstances may require, but for not more than sixty (60) days from the date of the filing of the application. Sec. 12-106. Notice of Hearing on Application. The Clerk of the Council shall, in every case of application for a permit, notify the applicant of the time and place of such hearing to be held thereon, and such notice shall be given at least seven (7) days before the date of such hearing. The Clerk of the Council shall cause a notice to be published once in the official newspaper of the City at least seven (7) days before said hearing date, and cause a copy thereof to be posted upon the premises to be primarily affected by the granting of such permit, and a copy on the bulletin board in the office of the Clerk of the Council. Such notice shall set forth the fact that such application has been filed, the name of the applicant, the nature of the thing to be permitted, and the time and place , of hearing upon such application. Sec. 12-107. Denial of Application. If an application for a permit is denied, the same appeal procedure as provided in Section 1~-31 shall be followed. Sec. 12-108. Issuance of Permit. The City Manager shall issue a permit if he finds: (a) That the operation of the motion picture theater by the applicant will be carried on in a building, structure, and loca- tion which complies with and meets all of the health, zoning, fire, and safety requirements and standards of the laws of the State of California and ordinances of the City of Santa Ana applicable to such business operation; (b) That the applicant, his employee, agent, or any person connected or associated with the applicant as partner, director, officer, stockholder, associate or manager: 1. Has not been convicted in a court of competent jurisdiction, by final judgment of: (i) An offense involving the presentation, exhibition or performance of an obscene production motion picture or play; or (ii)An offense involving lewd conduct; or (iii)An offense involving the use of force and violence upon the person of another; or -8- (c) (d) (iv) (v) An offense involving misconduct with minors; or An offense involving the maintenance of a public nuisance in connection with the same or similar business operation. Has not allowed or permitted prior to this application acts of sexual misconduct to he committed within premises or theaters operated by him or any person connected with him as employee, agent, partner, director, officer, stockholder, associate or manager. That the applicant, his employee, agent, or any person connected or associated with applicant as partner, director, officer, stockholder, associate, or manager, has not knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit, or in any report or record to be filed with the Clerk of the Council; That the applicant has not had a similar type of permit previously revoked for good cause or, if such were the case, he has shown material change in circumstances, within a period of one year from the date of revocation. Sec. 12-109. S%spension or Revocation of Permit. The City Manager shall suspend or revoke an existing permit whenever one or more of the following conditions are found to exist: (a) The building, structure, equipment or location of such business does not comply with or fails to meet all of the health, fire and safety requirements or standards of the laws of the State of California or ordinances of the City of Santa Ana applicable to such theater; (b) The permittee, his employee, agent, or any person connected or associated with permittee as partner, director, officer, stock- holder, associate, or manager: 1. Has been convicted in a court of competent jurisdiction, by final judgment, of: (i) An offense involving the presentation, exhibition or performance of an obscene production, motion picture or play; or (ii) An offense involving lewd conduct; or (iii) An offense involving the use of force and violence upon the person or another; or -9- (iv) (v) An offense involving misconduct with minors; or An offense involving the maintenance of a nuisance in connection with the same or similar business operation. 2. Has allowed or permitted acts of sexual misconduct to be committed within the theater in question. (c) The permittee, his employee, agent, or any person connected or associated ~ith permittee as partner, director, officer, stockholder, associate or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit, or in any report or record required to be filed with the Clerk of the Council. (d) Has violated any provision of this Article pertaining to the theater in question, or any other provision of the Santa Ana Municipal Code, or any other Code of the City of Santa Ana pertaining thereto. Sec. 12-110. Notice of Hearinq on Revocation. Such revocation or suspension shall be made only upon a hearing granted to the holder of the permit, held before the City Manager after five (5) days' notice to such permit holder, stating generally the grounds of complaint against him and stating the time and place where such hearing will be held. In the event of such revocation or suspension, any c~tificate issued in connec- tion with the granting of such permit shall, by the holder thereof, be forthwith surrendered to the City Manager. Such revocation or suspension of any permit shall be in addition to any other penalties more specifically provided in this Article. Sec. 12-111. Hearinqs. Any investigation, inquiry or hearing which the City Manager has the power to undertake or to hold may be undertaken or held by such member of the City Manager's staff as he may designate and to whom the matter is assigned. The person to whom a matter is assigned shall be deemed a "hearing officer". In any matter so assigned, the hearing officer conducting the investigation, inquiry or hearing shall~ within thirty (30) days after the con- clusion of the investigation, inquiry or hearing,~report ~is findings and recommendations to the City Manager. Within sixty (60) days after the filing of the findings and recommendations of the hearing officer the City Manager shall confirm, adopt, modify or set aside the findings of the hearing officer and with or without notice enter his order, findings, decision or award based upon the record in the case. In such hearings, investigations, and inquiries by the City Manager or a hearing officer, he shall not be bound in the conduct thereof by the common law or statutory rules of evidence and procedure but inquiry shall be made in a fair manner affording substantial due process, which is best calculated to ascertain the substantial rights Of the public and parties and carry out justly the spirit and provision of this Article. -I0- No informality in any proceeding or the manner of taking testimony shall invalidate any order, decision, award or rule made as specified in this Article. No order, decision, award or rule shall be invalidated because of the admission into the record and the use as any proof of any fact in dispute of any evidence not admissible under the common law or statutory rules of evidence and procedure. Sec. 12-112. Appeals. Any person excepting to any denial, suspension, or revocation of a permit applied for or held by him pursuant to the provisions of this Chapter, gr pursuant to the provisions of this Code where the application for said permit is made to, or the issuance thereof is by, the City Manager or any person excepting to the granting of, or to the refusal to suspend or revoke, a permit issued to another pursuant to the provisions of this Chapter, or issued to another by the City Manager pursuant to the provisions of this Code, may appeal in writing to the City Council by filing with the Clerk of the Council a written notice of such appeal setting forth the specific grounds thereof. Such notice must be filed within 14 days after notice of such action appealed from is posted in the United States mails. Upon receipt of such notice of appeal the Council shall set the time for con- sideration thereof. The Clerk of the Council shall cause notice thereof to be given (1) to the appellant and (2) to the adverse party or parties, or to the attorney , spokesman, or representative of such party or parties, not lesB than five~ (5) days prior to such hearing. At such hearing the appellant shall show cause on the grounds specified in the Notice of Appeal why the action excepted to should not be approved. Such hearings may, by the Council, be continued over from time to time and its findings on the appeal shall be final and conclusive in the matter. Sec. 12-113. Inspection of Premises. Any employee of the City of Santa Ana charged with the enforce- ment of this Code or state law pertaining to the premises in question shall be permitted to enter and inspect at any reasonable time, without charge or other restraint, such premises for the purpose of ascertaining whether or not any of the provisions of this Code or state law applicable thereto are being violated. Sec. 12-114. Permits to be Exhibited. Any permit required under the provisions of this Article shall be exhibited in a conspicuous place in that part to which the public has access, of the premises to which such permit appertains. Sec. 12-115. Transfer of Permits. No permit in this Article required shall be transferable, nor apply to any premises other than originally specified as the location of the thing permitted, except upon written permission of the City Manager granted upon written application by the trans- feree, made in the same manner as may be required in the instance of the original application for such permit. Sec. 12-116. Regulation of Outdoor advertising. No person granted a permit pursuant to this Article shall place or cause to be placed or maintained in such a location as can be viewed by persons on any public street and ways or on any portion of the premises to which the public has access without paying an admission charge any of the following photographic, pictorial or other graphic representations: sexual intercourse, or any sexual perversions such as fellatio, cunnilingus, bestiality, sodomy, or sadomasochism. The prohibition herein shall include simulation of such acts herein enumerated and shall include representations where the participants are clothed, partially clothed, or unclothed. Such prohibited representations include those where the genital or pubid areas are obliterated in whole or in part. Sec. 12-117. Siqn Removal. Ail prohibited photographic, pictorial or graphic representations shall be removed within ten (10) days after the effective date of this Article as to all theaters to which a permit has been issued prior to the effective date of this Article. Sec. 12-118. Visibility from the Street. No operator of a theater shall permit, or cause to be permitted, any entertainment or film to be viewed at any time from the street, sidewalk or highway. Sec. 12-119. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Article or any part thereof is for any reason held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Article or any part thereof. The City Council hereby declares that it would have passed each section, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared unconstitu- tional or invalid or ineffective. Sec. 12-120. Penalty. Any person violating any of the provisions or failing to comply with any legal requirements of this Article shall be guilty of a misdemeanor. Each person shall be guilty of a separate offense for each and every day during which any portion of any violation of any provision of this Article is committed, continued or .permitted by such person, and shall be punished accordingly. In addition to the penalties hereinabove provided, any conditions caused or permitted to exist in violation of any of the provisions of this Article shall be deemed a public nuisance and may by the City of Santa Ana be abated as such. Sec. 12-121. Effect on Existing Permits or Pending Proceedings. Nothing contained in this Article shall be construed as invalidating any permit issued prior to the enactment of this Article or abating any action now pending under or by virtue of any provision of this Code which no longer has any application to theaters; or as discontinuing, abating,modifying or altering any penalties accruing, or to accruing, or to accrue, or as waiving any right of the City under any provision of this Code regulating the maintenance or operation of any theater in force at the time of passage of this Article. SECTION 2: That This ordinance shall take effect thirty days from and after the date of its adoption. PASSED AND ADOPTED by the City Council of the City of Santa Ana at its regular meeting held on the 17th day of M~y , 1971. ATTEST: MAYOR CLERK OF THE COUNCIL STATE OF CALIFORNIA) COUNTY OF ORANGE ) CITY OF SANTA ANA ) SS I, FLORENCE I. MALONE, do hereby certify that I am the Clerk of the Council of the City of Santa Ana, California; that the foregoing Ordinance was introduced to said Council at its regular meeting held on the ~rd day of ~ay 1971, and was again considered by said Council at its meeting held on ~e 17th day of May , 1971, and was at said meeting passed and adopted by the following vote, to wit: AYES, COUNCILMEN: Herrin, Evans, Nmrkel~ Patterson~ Yamamoto, Griset NOES, COUNCILMEN: Villa ABSENT, COUNCILMEN: None CLERK OF THE COUNCIL -13-