OFFICE OF THE CITY ATTORNEY
ROCKARD J. DELGADILLO
CITY ATTORNEY
.
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REPORT RE:

PROVISIONS RELATING TO POLICE PERMITS,
ADULT BUSINESSES, AND CIVIL ENFORCEMENT REMEDIES

The Honorable City Council of the City Los Angeles
Room 395, City Hall
200 North Spring Street
Los Angeles, California 90012

(Council File No.99-0185)

Honorable Members:

We are transmitting for your consideration, a draft of an ordinance, approved as to form and legality, which makes major revisions to the police permitting procedures to meet current legal requirements. The ordinance particularly addresses changes to regulations relating to adult entertainment and provides for enhanced civil enforcement and penalties for violating any provision of the Municipal Code as a public nuisance. The changes are detailed in Section B below.

This matter was considered by your Public Safety Committee on March 17, 2003, and approved. The Committee instructed that the draft ordinance be revised to address some technical issues raised by the Police Commission. The draft ordinance was considered by the Police Commission at its meetings of April 15 and 22, 2003. The Commission recommended that a provision for a state licensed security guard be included in Section 103.102.1, additional regulations for businesses providing live entertainment. This additional regulation appears as Subdivision (x) of Section 103.102.1. This matter was again considered by your Public Safety Committee on June 9, 2003. At that time the Committee approved the ordinance with two amendments. The first was that a provision for a state licensed security guard be included in Section 103.101.1(c), additional regulations for an adult picture arcade. This additional regulation appears as Subsection (7) of Section 103.101.1 (c). Second, it was requested that a provision for an interior floor plan be required for a businesses providing live entertainment. This additional regulation appears as Subdivision (z) of Section 103.102.1.

A. BACKGROUND -COUNCIL MOTION AND TOPANGA PRESS LITIGATION

On February 2, 1999, the City Council requested that the City Attorney review ordinances in Kent, Washington and Newport Beach dealing with "nude juice bars" and report to the Public Safety Committee about the feasibility of combining the provisions of these ordinances into an ordinance for consideration by the City Council. The City Council expressed concern about the serious secondary effects generated by "nude juice bars" as well as the concomitant drain on police resources. The motion noted that ordinances in Kent, Washington and Newport Beach designed to mitigate the negative effects of "nude juice bars" had recently survived legal challenges.

In reviewing the Council's instructions and the administrative provisions that would control the proposed ordinance, this Office concluded that there were portions of the police permit scheme that needed to be updated. These types of revisions are necessary in order to comport with changes in case law, which is in a constant state of flux because of constitutional considerations.

Additionally, this Office determined that this was an optimum time to also incorporate changes to City ordinances that were necessitated by the Topanga Press litigation. By way of background, between 1989 and 1991, 16 adult businesses filed suit in federal court (Topanga Press litigation) against the City, challenging the City's zoning ordinance that regulated adult businesses (Los Angeles Municipal Code Section 12.70.) and the City's permitting ordinance regulating entertainment and picture arcade businesses (Sections 103.102 and 103.101). Various provisions relating to the application process were also challenged. The Section 12.70 litigation was severed and the challenge to police permit regulations resulted in a stipulated consent decree and settlement agreement between the City and the 16 defendants in 1991. As part of that agreement, the City agreed (as to the Topanga Press plaintiffs) to not enforce certain code sections dealing with police permits until those sections were amended.

The ordinance presented to City Council addresses the issue of nude juice bars and makes comprehensive changes to the police permit administrative provisions in order to bring those sections up to date and also to address the Topanga Press litigation. In drafting the ordinance, this Office has also considered the experiences of other cities, including those referenced by the Council, as well as relevant case law.

NOTE: All references are to the Los Angeles Municipal Code, unless otherwise indicated.

B. SUMMARY OF ORDINANCE

The changes made to the Los Angeles Municipal Code are summarized below.

1. Section 11.00(1), (n) and (0). (General Provision.) Subdivision (I) is amended to specifically provide that any violation of the Code may be abated as a public nuisance by means of a restraining order, injunction or any other order or judgment in law or equity. A civil penalty of $2500 is added for each offense. Subdivisions (n) and (0) are added to permit the City to summarily abate nuisances and the cost of such abatement can be made a lien against the property and for enhanced civil penalties for subsequent abatement actions.

2. Section 41.60. Adult Live Entertainment. A new section is added, providing penalties for the following conduct in an adult or sexually oriented business.

	Intentional physical contact between an entertainer and patron
	Sexual physical contact between employees and patrons
	Sale or distribution of sexually oriented merchandise
	Direct payment of tips to entertainers

3. Section 103.01. Definitions. New definitions are added for: Business, Director of Finance, Employee, Entertainer, Manager, Owner, Patron, Premises, Sexually oriented material, Sexually oriented merchandise, Specified anatomical parts and Specified sexual activities.

4. Section 103.02. Permit Required. The language has been revised to state that no person may carry on any business for which a permit is required without obtaining a permit from the Board of Police Commissioners ("Board").

5. Section 103.02.1. Permit Applications. This is a new section which sets out the requirements of an application, changes to application information, confidentiality of application information and the duty to submit a complete application. It also delineates time lines for filing complete applications.

6. Section 103.06. Permits - Duration. This section is amended to state that permits are valid for one year.

7. Section 103.06.1. Permits - Renewal. This is a new section that requires permits to be renewed annually and sets out certain changed circumstances that require a new permit.

8. Section 103.06.2. Temporary Permits. This is a new section that permits the Board to issue a temporary permit pending its decision on a permit application.

9. Section 103.08. Permits Non-Transferable. This section is amended to provide that permits are not transferable. It also clarifies the circumstances in which legal entities must obtain new permits.

10. Section 103.09. Permit for Each Location. This section has been reworded to state that a permit is only valid for the address or location specified on the permit.

11. Section 103.21. Change in Owner Information. This section has been amended to clarify the types of changes in owner information that must be reported to the Board.

12. Section 103.29. Board Action on Application. This section has been amended to state that the Board shall issue a permit for a picture arcade, cafe entertainment and shows, or motion picture show within 45 calendar days of receipt of a complete application if all requirements have been met and within 90 days for all other permit applications. These time periods are extended by 15 calendar days if a hearing is requested and may be extended by mutual agreement of the applicant and the Board. This section also provides that the Board shall deny applications upon the grounds stated in Section 103.31.

13. Section 103.30. Effect of Granting Permit. This section has been revised to indicate that the granting of a permit does not absolve the permittee from complying with other laws nor does it vest any development rights.

14. Section 103.31. Denial of Application. This section regarding denial of the application has been amended to differentiate the grounds for denial for permits issued under Sections 103.101.1 (picture arcade) 103.102 ( cafe entertainment and shows) and 103.109 (movie theaters) from all other permits.

15. Section 103.31.1. Final Decisions. This section has been added to indicate that Board action is final upon the mailing of a copy of the Board action.

16. Section 103.31.2. Effective Date of Notices. This new section states that all notices shall be deemed to have been given upon the date they are deposited in the United States mail or personally delivered.

17. Section 103.34. Suspension or Revocation of Permits. This section dealing with suspension and revocation of permits has been amended to apply to all permits except those issued under Sections 103.101.1, 103.102 and 103.109.

18. Section 103.34.1. Suspension or Revocation of Permits. This new section delineates the circumstances in which a Board may suspend or revoke permits issued pursuant to Sections 103.101.1, 103.102 and 103.109.

19. Section 103. 101. Picture Arcade. This existing section is reworded to define picture arcade and to provide a definition of an adult picture arcade.

20. Section 103.1 01.1. Picture Arcade Regulations. This section is amended to provide that a permit is required for operating a picture arcade. It also includes regulations for picture arcades and adult picture arcades.

21. Section 103.101.2. Compliance by Existing Permittees. This section is amended to provide that all picture arcade permittees must comply with the provisions of Section 103.101.1 upon its effective date.

22. Section 103.102. Cafe Entertainment and Shows. This section is amended to delete provisions relating to issuance of a permit, Board decision, suspension or revocation of a permit and Board rules and regulations.

23. Section 103.102.1. Additional Regulations. This new section provides regulations for adult entertainment businesses, including, but not limited to:

The following prohibitions:

	Live entertainment unless it is upon a stage at least 18 inches in height and separated at least six feet from patrons with fixed rails at least 30 inches high
	Entertainers and patrons coming within six feet of each other
	Direct tipping of entertainers
	Sales or giving away of sexually oriented merchandise
	Specified sexual conduct, including sexual intercourse, sodomy, oral copulation or masturbation
	Partitions of any kind in areas where patrons have access, except restrooms

The following requirements:

	Separate dressing rooms, entrance/exit for entertainers
	Sufficient lighting (not less than two foot-candles)
	Separate restrooms for males and females
	Compliance with signage, parking, design standards
	Employees to have government issued identification
	A manager on the premises

24. Section 103.102.2. Compliance by Existing Permittees. This new section requires that certain designated provisions in Section 103.102.1 (that require physical changes to the premises) must be implemented no later than 180 days of the effective date of that section. All other provisions must be complied with on the effective date of the section.

25. Section 103.109. Motion Picture Shows. Procedures relating to issuance of a permit, decision of the Board, suspension or revocation of a permit and Board rules and regulations have been deleted from this section.

C. CONCLUSION

Based upon the relevant case law and the experiences of other cities that are attempting to combat the deleterious impacts of adult entertainment businesses, the City Attorney's Office submits a draft ordinance which revises the administrative procedures relating to permits and adds sections regulating adult entertainment business and recommends its approval.

If you have any questions, please contact Asha Greenberg at (310) 575-8544 or Mike Klekner at (213) 978-8253 of our office. A representative of this Office will be available to answer any questions you may have at the time you consider this ordinance.

Sincerely,

TERREE A. BOWERS
Chief Deputy City Attorney