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HomeMy WebLinkAbout1999-002 Licenses and regulations y • • • ORDINANCE NO. 99.0 AN ORDINANCE relating to licenses and business regulations; imposing tipping and non stage dancing regulations for adult entertainment establishments; and amending Section 5.30.040. of the City of Yakima Municipal Code. BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. Section 5.30.040 of the City of Yakima Municipal Code is hereby amended to read as follows: 5.30.040 Unlawful conduct. A. It is unlawful for the licensee or manager of an adult entertainment establishment to: 1. Employ or otherwise allow any unlicensed person to act as a manager or entertainer at an adult entertainment establishment; 2. Permit to remain in an adult entertainment establishment any • person under eighteen years of age; 3. Conduct or operate an adult entertainment establishment between the hours of two a.m. and eight -thirty a.m. of the same day; 4. Conduct or operate an adult entertainment establishment which is not physically arranged in such a manner that: a. The stage on which adult entertainment is provided shall be visible from the common areas of the premises. Visibility shall not be blocked or obscured by doors, curtains, drapes or any other obstruction whatsoever, temporary or permanent, b. No adult entertainment occurring on the premises shall be visible at any time from any public place; 5. Conduct or operate an adult entertainment establishment unless a clearly readable sign is conspicuously posted at or near each public entrance to the studio, which sign is printed in letters at least one inch tall and which reads substantially as follows: THIS ADULT ENTERTAINMENT ESTABLISHMENT IS REGULATED BY THE CITY OF YAKIMA; 6. Conduct or operate an adult entertainment establishment wherein there is not sufficient lighting in and about all parts of the premises which are open to and used by the public so that all objects are plainly visible at all times; 7. Lock, bar entry, or fit with lock devices any enclosed room or cubicle within the studio where dancing is performed, at any time the premises • are open to the public; Page 1 (jw)ord /adult tips.jw • 8. Own, operate or conduct an adult entertainment establishment without a licensed manager in such establishment at all times such establishment is open to the public; 9. Allow any person, other than an employee, in any area other than a public restroom of an adult entertainment establishment, including any booths, cubicles, rooms or stalls, which is not completely visible from all common areas of the premises; 10. Post and conspicuously display in the common areas of each place offering adult entertainment a list of any and all entertainment provided on the premises. Such list shall further indicate the specific fee or charge in dollar amounts for each entertainment listed; 11. Allow any performance or any photograph, drawing, sketch or other pictorial or graphic representation thereof displaying any portion of the breasts below the top of the areola or any portion of the pubic hair, vulva, buttocks, genitals or anus to be visible outside of the licensed premises; B. It is unlawful for the licensee or manager to permit, allow or commit, or for any other person to commit, any of the following: 1. No employee or entertainer shall be unclothed or in such attire, costume or clothing so as to expose to view any portion of the breast below the top of the areola or any portion of the pubic hair, anus, buttocks, vulva or genitals except as provided for in subdivision 7 of this subsection. 2. No employee or entertainer mingling with the patrons shall be unclothed or in such attire, costume or clothing as described in subdivision 1 above. 3. No employee or entertainer shall encourage or knowingly permit any person upon the premises to touch, caress or fondle the breasts, buttocks, anus or genitals of that employee or entertainer or of any other person. 4. No employee or entertainer shall touch, fondle or caress any patron, or other employee or entertainer for the purpose of arousing or exciting the sexual desires of such patron, other employee or entertainer, or of any other person; sit on a patrons lap or separate a patron's legs. 5. No employee or entertainer shall wear or use any device or covering exposed to view which simulates the breast below the top of the areola, vulva or genitals, anus, buttocks or any portion of the pubic hair. 6. No employee, entertainer other person shall perform actual acts, or acts which simulate: a. Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts that are prohibited by law; b. The touching, caressing or fondling of the breasts, buttocks or genitals; or c. The displaying of the pubic hair, anus, vulva or genitals, except as provided for in subdivision 7 of this subsection. 7. A licensed entertainer, only, may be unclothed or in such attire, costume or clothing so as to expose to view any portion of the breasts below the top of the areola, or any portion of the pubic hair, vulva, genitals, anus or Page 2 (jw)ord /adult tips.jw • buttocks, but only when upon a stage at least eighteen inches above the immediate floor level and removed by at least six feet from the nearest patron. 8. No employee or entertainer shall use artificial devices or inanimate objects to depict any of the prohibited activities described in this section. 9. The owner, operator or manager shall immediately remove from the licensed premises any person who exposes to public view any portion of the breast below the top of the areola, or any portion of the pubic hair, anus, buttocks, vulva or genitals except as expressly provided for in subdivision 7 of this subsection. 10. a. An entertainer mingling with a member of the public may not conduct a dance, performance, or exhibition on or about the nonstage area of the adult entertainment establishment unless that dance, performance, or exhibition is performed at a distance of at least four feet from the member of the public for whom the dance, performance, or exhibition is performed. The distance of four feet is measured from the torso of the dancer to the torso of the member of the public. b. An entertainer performing upon a stage area may not accept any form of gratuity offered directly to the entertainer by a member of the public. A gratuity offered to an entertainer performing upon a stage area must be placed into a receptacle provided for receipt of gratuities by the management of the adult entertainment establishment or provided through a manager on duty on the premises. • c. A gratuity or tip offered to an entertainer conducting a performance, dance, or exhibition on or about the nonstage area of the adult entertainment establishment must be placed into the hand of the entertainer or into a receptacle provided by the entertainer, and not upon the person or into the clothing of the entertainer. A receptacle attached or affixed to the clothing or person of the entertainer does not comply with this section. d. No entertainer at a place offering adult entertainment shall demand or collect all or any portion of a fee from a patron for entertainment before its completion. 11. No entertainer shall be visible from any public . place during the hours of his or her employment, or apparent hours of such employment on the premises. C. Exterior signs and any interior sign or notice visible to the public may announce the name of the business and the nature of the business by the term "adult entertainment," "adult theater" or "adult use establishment" but shall not contain any representation of the human body or make any statement pertaining to the human body, whether of entertainers, patrons or the public. D. It is unlawful for any person to be employed in an adult entertainment establishment or offer to dance in an adult entertainment establishment at a time when it is unlicensed under this chapter. E. This section shall not be construed to prohibit: 1. Plays, operas, musicals, dances or other dramatic works which are 1111 not obscene; or Page 3 (jw)ord /adult tips.jw 2. Classes, seminars and lectures held for serious scientific or educational purposes; 3. Exhibitions or dances which are not obscene; F. For purposes of subsection D, above, an activity is "obscene" if: 1. Taken as a whole by an average person applying contemporary community standards the activity appeals to a prurient interest in sex; 2. The activity depicts patently offensive representations of: ultimate sexual acts, normal or perverted, actual or simulated; or masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital area; or violent or destructive sexual acts, including but not limited to human or animal, mutilation, dismemberment, rape or torture; and 3. The activity taken as a whole lacks serious literary, artistic, political or scientific value. G. For purposes of subsection C of this section, an activity is "dramatic" if the activity is of, relating to, devoted to, or concerned specifically or professionally with current drama or the contemporary theater. H. This chapter shall not be deemed to permit any activity, in taverns, bars, cocktail lounges, or any premises maintaining liquor licenses, not permitted by the State, Liquor Control Board. This chapter shall not be deemed to permit any activity contrary to Section 6.10.020; prohibiting nudity and semi - nudity on licensed premises." Section 2. This ordinance shall be in full force and effect 30 days after i its passage, approval, and publication as provided by law and by.the City Charter. � PASSED BY THE CITY COUNCIL, signed and approved this t � day of Januaiy 1999. John Puc.cinelli, Mayor ATTEST: City Clerk Publication Date: 0 / — d - c) ---C ?? Effective Date: oa- 1 'l 110 Page 4 (jv)ord /adult tips.jv ,. III BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 1 Li For Meeting Of /---/c/-9 ITEM TITLE: An Ordinance relating to licenses and business regulations; imposing tipping and non stage dancing regulations for adult entertainment establishments; and amending Section 5.30.040 of the City of Yakima Municipal Code. SUBMITTED BY: Jeff W. West, City Prosecutor CONTACT PERSON/TELEPHONE: Jeff B. West /575 -6030 SUMMARY EXPLANATION: • The City has an ongoing policy to regulate to the fullest extent, consistent with the State and Federal Constitution, the secondary effects of adult entertainment. Of particular concern is the physical contact between dancer and patron which often occurs in these establishments. As noted in Memorandum to ip Council dated August 28, 1997, a copy of which is attached, there are regulatory measures available to help curb these evils associated with adult entertainment. It was noted at that time that legislation was pending at the state level which would accomplish these same goals. The City did not take action at that time, electing to wait and see what action occurred at the state level. At this time, it appears that the proposed state legislation has died and will not be enacted. Proposed for Council consideration is an amendment regulating tipping in adult entertainment establishments. A second proposal is to prohibit any dance within four feet of a patron. These regulations are aimed at prohibiting illegal conduct, particularly the illegal touching of another for purposes of sexual gratification in exchange for a fee. Resolution Ordinance X Contract Other(Specify) Funding Source APPROVED FOR SUBMITTAL: , � \' City Manager STAFF RECOMMENDATION: Council Policy Issue BOARD /COMMISSION RECOMMENDATION: COUNCIL ACTION: III (1k)agenda/adult entertainment 98-jw • MEMORANDUM AUGUST 28,1997 TO: Honorable Mayor and Members of the City Council R. A. Zais, Jr., City Manager FROM: JEFF B. WEST, Senior Assistant City Attorney SUB: Adult Entertainment Zoning I. INTRODUCTION This memorandum and the attached sample ordinances, studies and proposed statutes are intended as a comprehensive review of the current City of Yakima ordinances dealing with adult entertainment and proposals to improve these ordinances. This memorandum will first discuss current City of Yakima ordinances on the subject of adult entertainment. The second section will discuss the issues involved in zoning regulations for adult entertainment and suggest several alternatives to the pending proposal which would require a level three review prior to locating an adult entertainment establishment in the central business district or the central business district support zones. The third section will discuss additional regulations for adult entertainment establishments including requiring uniformed police to be on site, tipping regulations, a ban on one -on -one dances • (commonly referred to a "table dances" or "couch dances ") and requiring each adult entertainment establishment to install and operate video tape surveillance inside of the establishment. II. CURRENT ORDINANCES The centerpiece of the City of Yakima's regulation of adult entertainment is contained in YMC Ch. 5.30. This chapter is a business licensing ordinance which was reviewed and substantially amended by the City Council in 1994. This ordinance prohibits nude dances except upon a stage; tipping prior to a performance; booths, cubicles or other private viewing rooms; inadequate lighting; entertainers outside the establishment; persons under 18; and certain specified lewd acts upon stage. The City's ordinance further imposes a licensing requirement for all owners, managers and entertainers. A dancing on stage only (no table or couch dances) restriction was discussed in 1994, but was not adopted due to the risk of invalidation. In addition to YMC Ch. 5.30, the City prohibits any nude dancing in an establishment licensed to sell alcohol. YMC 6.10.020. Lewd conduct and indecent exposure are also prohibited, although these ordinances exclude "expressive nude activity" in order to comply with constitutional mandates. The City of Yakima currently does not have any adult entertainment zoning regulations. Nor does the City regulate adult movie theaters or bookstores through zoning. These uses are not listed in the zoning code. Page 1 December 31, 1998 mem.council.adult entertjw III. PENDING ZONING PROPOSAL Currently before the City Council is a draft zoning ordinance which would make live adult entertainment establishments a class three use in the central business district and the central business district support zones. (Copy attached as Addendum A). For several reasons, this proposed.ordinance will not survive a constitutional challenge. In order to understand why this is so, included is a brief synopsis of the jurisprudence of adult entertainment Nude and semi -nude dancing are considered artistic expressions protected by the First and Fourteenth Amendments of the United States Constitution and Article 1, Section 5, of the Washington State Constitution. See e.g. Schad v. Mount Ephraim, 452 U.S. 61, 65 (1991); JJR Inc. v Seattle, 126 Wn. 2d 1 (1995). However, nude dancing is not - entitled to the full protection of the First Amendment. Barnes v. Glen Theaters, Inc., 501 U.S.560 (1991). Nude dancing "clings to the edge of protected expression." JJR Inc. v. Seattle, 126 Wn.2d 1, 6 (1995). While nude dancing is protected, neither the First Amendment nor Article 1, Section 5, of the Washington State Constitution protect nude conduct. O'Day v. King County, 109 Wn.2d 796, 803 (1988). While the act of dancing nude is protected, the conduct of rubbing up against a patron is not. Additionally, while the City must allow nude dancing to occur, the City may impose time, place and manner restrictions on nude dancing if the restrictions are (1) content neutral, (2) narrowly tailored to serve a compelling state interest, and (3) leave open ample alternative channels of communication. O'Day supra at 809. Like other forms of government regulation, zoning and land use laws are subject to the First Amendment and Article 1, Section 5, of the Washington State Constitution. World Wide Video v Tukwila, 117 Wn. 2d 382, 387 (1991). Through zoning regulations, local government may impose time, place and manner restrictions on adult entertainment establishments. Id. In order for zoning to be valid, the local government must ensure that its zoning regulations are: (1) content neutral, (2) narrowly tailored to serve a compelling state interest, and (3) leave open ample alternative channels of communication. Id. Content Neutrality means that the government may not regulate the message. However, government may regulate the type of speech if it has deleterious secondary effects. That is, government may not regulate nude dance because it does not like the message conveyed, but may, regulate it because that type of communication has side effects. That the regulation is narrowly tailored to serve a compelling state interest first requires that the government demonstrate a compelling government interest. In order to demonstrate a compelling government interest, the legislative body must base its determination to regulate on a substantial record. See- Adult Entertainment Legislative Record, Londi Lindell (1995); (attached hereto as addendum B). Typically, the compelling state interest shown is that of combating the undesirable secondary effects of adult entertainment establishments. See Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986). This record may be based on the experience of other similarly situated local Page 2 December 31, 1998 mem.council.adult entertjw • governments. Renton, supra at 51: However, failure to create a proper record will result in invalidation of the ordinance. World Wide Video , supra at 390. The courts require that adequate alternate channels of communication must remain. There must be land available which could be used for the purpose of adult entertainment. (See Heller, Regulation of Adult Entertainment, attached hereto as Addendum D). Hence, the question really is: where do we want an adult entertainment establishment to locate so as to cause the least adverse impact on the community? This issue will be more fully addressed by the Planning Division. In addition, Washington State Courts have been very aggressive in overturning regulations which allow discretion in the planning official as to whether or not an adult entertainment use will be allowed. In Wallock v. Everett, Snohomish County Cause No. 95 -2- 00560 -6 (1996), the court states: "It is not enough, under the Constitution, that there are some potential sites where City officials have the discretion to allow adult business uses to operate because they are not prohibited outright. The Constitution requires that they have some place to locate as a matter of right, not a matter of discretion." The proposed ordinance, which would require class three review of any adult entertainment establishment, will not pass constitutional muster since class three review is defined in the zoning code as "generally not permitted" and a class three use is only allowed at the discretion of the City officials. The only way to require public notice of a review of an adult entertainment establishment is to create an entirely new class of review which requires public notice and comment, but at the same time provides that the use must be permitted. Other zoning regulation options, including separation requirements, i.e. not within 1000 feet of a school, and overlay zones are permitted provided that the proper record is created. Planning will present these options to the Council. IV. ADDITIONAL REGULATORY MEASURES While the City of Yakima has adopted a comprehensive package of adult entertainment regulations, the following options may also be considered. However, due to a proposal for a state wide adult entertainment regulation, it is recommended that the adoption of any proposed amendments be delayed until after the next legislative session. A copy of a preliminary draft of the proposed state wide regulation is attached. One proposed amendment is to regulate tipping in adult entertainment establishments. While tipping of totally nude dancers may be prohibited, Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), tipping for non -nude table dancing or couch dancing may not be prohibited under the Washington State Constitution. Davis v. Snohomish County, King County Cause No. 87- 2- 01335 -9 (1987). This does not necessarily mean that the method of tipping for couch and table dances may not be regulated. The proposed state ordinance contains a provision requiring that all tips for table or couch dances be placed in a container and not on the dancer's person or clothing. Proposed ESSB 1575 Section 12 (g) (Copy attached as Addendum C). Although there is a slight possibility that such a Page 3 December 31, 1998 mem.council.adult entertjw regulation may be invalidated, this is a sound proposal which appears to comport with the existent case law. A second proposal is to prohibit any dance within four feet of any patron. This regulation has been upheld. Ino Ino, Inc. v. Bellevue, 132 Wn.2d 103 (1997). This regulation is aimed at prohibiting illegal conduct, particularly the illegal touching of another for purposes of sexual gratification in exchange for a fee. The proposed state statute contains such a prohibition. If the state fails to adopt this measure, the City should consider adopting this regulation. A third proposal is to require that any adult entertainment establishment hire an off duty uniformed Yakima police officer to provide security. Such a regulation has several drawbacks. First, this proposal is possibly overbroad in violation of both the Federal and State Constitutions. While. I have been unable to locate any case law directly related to this issue, it would be very difficult to show that a police officer would provide a degree of security which could be distinguished from the level of security provided by other security personnel. However, the deeper problem with requiring uniformed police on site is that such a program creates the appearance of official sanction of the activities. Such an appearance would deleteriously affect the public appreciation of the Yakima Police Department. Police Chief Blesio concurs in this assessment. Moreover, he believes that such a requirement would complicate police officer contract negotiations because of the off duty employment issues presented thereby. For these reasons, this option is not recommended. A fourth option is to require that the club owners install a video surveillance system and keep the video tapes therefrom for review by the police department. I have discussed this - option with Pat Mason at Municipal Research Service and with Dan Hied, Lakewood City Attorney. The consensus is that, while there is no legal authority on point, that such a regulation "goes too far" and would likely be struck down as violative of the First Amendment. One variant of this proposal is to make the installation of video equipment part of a probation system. Under such a scheme, video equipment monitoring would not be required until the adult entertainment establishment had collected a specified number of violations within a specified period. Once the specified number of violations had been accumulated, then the adult entertainment license of the club would be placed on a probationary status. As part of the probation, the club would be required to install the video equipment and make the tapes available to the police. The alternative to agreeing to this probation would be revocation of the adult entertainment license. Such a probationary system has a much better chance of being upheld since the requirement is based on actual violations rather than projected ones and therefore specifically targets errant club owners and managers while permitting properly run establishments to avoid the video requirement. This would then be a very narrowly drawn requirement to enforce the City's other adult entertainment. establishments. Page 4 December 31, 1998 mem.council.adult entertjw Unfortunately, there is one change that should be Made as soon as possible. Under the City of Yakima's current adult entertainment license ordinance, the owner(s), manager(s) and dancer(s) may not engage in adult entertainment activities until they have obtained an adult entertainment license. between the time that the application for a license is filed and the issuance or denial of the license, these individuals are unable to operate. The Washington State Supreme Court has ruled that such a licensing scheme is an unconstitutional prior restraint under Article 1, Section 5, of the Washington State constitution. Ino Ino, Inc. v. Bellevue, 132 Wn.2d 103 (1997). According to the Court, a temporary license must be issued during the time it takes to process the application. The Yakima City ordinance must be amended to provide for such a temporary license. V. CONCLUSION The currently proposed zoning amendment to require class three review of adult entertainment establishments is unconstitutional. Several other options, including separation requirements and/or overlay zones should be considered. These amendments will require a proper factual foundation based on the experience of other cities. Staff will require Council's direction on what types of adult entertainment (live shows, movie houses, video rental stores ect.) the Council wishes to see regulated and in what zones or areas the Council believes that these uses will have the least impact. Several other amendments to the current Adult entertainment ordinance should also be considered, although the Council may wish to wait and see what regulations the State • adopts prior to adopting such regulations. An ordinance should be prepared immediately to cure the prior restraint problem in Yakima's current adult entertainment licensing provisions to allow a temporary license while the license application is being processed. • Page 5 December 31, 1998 mem.council.adult entert.jw