Chapter 5.45 PLACES OF ENTERTAINMENT

The purpose of this chapter is to regulate the operation of businesses that provide live entertainment to their patrons and which are licensed by the Department of Alcoholic Beverage Control to serve alcoholic beverages for consumption so as to minimize the negative effects and to preserve the public safety and health. These establishments are known to present special problems of noise, boisterous conduct, fighting, or other disorderly conduct, thefts, littering, loitering, public congestion inside the premises, and outside the premises in adjacent parking areas, or other adjacent areas, illegal parking, and related problems arising out of the particular circumstances attendant to public congregations of this type. 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 establishment, making adequate provisions for security and crowd control, compliance with state and local laws and minimizing disturbances caused by the operation of the establishment. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14101. Formerly 5.45.130.)

5.45.020 Definitions.

For purposes of this chapter, and unless the context clearly indicates otherwise:

(a) “Applicant” means all persons having a direct or indirect financial interest in a place of entertainment.

(b) “Commercial establishment” means any facility at which commercial activity requiring payment of a business tax under Chapter 5.05 is conducted and is not exempt from taxation under state and federal law.

(d) “License” means the license required by Section 5.45.030.

(e) “Licensee” means an applicant issued and holding a valid license.

(f) “Live entertainment” means a live presentation by single or multiple performers such as musicians, comedians, dancers, and actors, and includes the presentation of recorded music played on equipment which is operated by a disc jockey, commonly known as a “DJ,” whether or not such person or persons are compensated for such performance. Live entertainment does not include recorded music played on a loudspeaker system as background music and not delivered by a disc jockey. Live entertainment does not include a single karaoke machine and/or a single acoustic musician. “Live entertainment” does not include any adult-oriented business defined in Section 18.25.070.

(g) “Place of entertainment” means any commercial establishment at which all of the following conditions are present:

(1) Patrons are offered or consume alcohol whether or not a fee is charged; and

(2) Live entertainment is provided to patrons.

(h) “Places of entertainment” are divided into the following classes:

(1) Class 1: any place of entertainment if at any time live entertainment and service of alcohol is the primary use, including but not limited to night clubs.

(2) Class 2: any place of entertainment where live entertainment is incidental to the primary use of the establishment, such as a restaurant that provides live music only on certain nights.

(i) “Premises” includes any structure or portion of structure or exterior or outdoor area in close proximity to the place of entertainment which is under the lawful control of a responsible person.

(j) “Responsible person” means a person in possession of real property comprising the premises; a licensee under this chapter; each person upon whom a duty, requirement or obligation is imposed by this chapter related to the operation of a place of entertainment; each person who is otherwise responsible for the operation, management, direction, or policy of a place of entertainment; and an employee who is in apparent charge of the premises. (Ord. 4-2009 § 1, 1-27-09; Ord. 11-2009 § 1, 5-12-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14102. Formerly 5.45.140.)

5.45.030 Place of entertainment license required.

(a) No establishment which is licensed by the Department of Alcoholic Beverage Control to serve alcoholic beverages for consumption upon the premises shall provide or allow live entertainment upon such premises without first obtaining a license pursuant to this chapter.

(b) A person with a valid place of entertainment license may operate as a place of entertainment of a less intense class than the class authorized by the license without modifying the license.

(c) A place of entertainment license is in addition to any other license or permit required under any other provisions of the Fremont Municipal Code, including but not limited to a business tax, zoning administrator permit, conditional use permit, building permit, occupancy certification or permit, adult entertainment permit, or any other permit or license required by law. The terms of a place of entertainment license do not modify the requirements of any other permit or approval and shall not be construed as a substitute for obtaining any other permit, license or approval otherwise required. The issuance of a place of entertainment license shall not be construed as a factor in favor of the issuance of any other permit, license, or approval necessary under this code for the operation of the commercial establishment. (Ord. 4-2009 § 1, 1-27-09; Ord. 11-2009 § 2, 5-12-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14103. Formerly 5.45.150.)

5.45.040 Licenses.

(a) A license shall be valid for a term of five years from the date of issuance unless revoked or surrendered. Suspension of a license shall not extend its term.

(b) A license expires upon change of ownership of the commercial establishment. The new owner must apply for a license, pay a new application fee, and secure a new license from the chief of police in accordance with Section 5.45.050.

(c) A license may be renewed by a new application subject to the same requirements for obtaining the initial license, including payment of an application fee.

(d) Licenses issued under this chapter are not transferable to another person or location. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14104. Formerly 5.45.160.)

5.45.050 Application for license or modification.

(a) Any person desiring to obtain a place of entertainment license or modification to a license must submit a complete application to the chief of police and pay an application fee.

(b) The application shall be filed:

(1) At least 45 days before the proposed operation of the place of entertainment;

(2) At least 45 days before the expiration of a place of entertainment license; or

(3) At any time for a modification. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14105. Formerly 5.45.170.)

5.45.060 Application requirements.

(a) Form. A license application must be in a form approved by the chief of police. The chief of police may develop a form for mandatory use that requests information appropriate for the evaluation of the qualifications of a licensee or place of entertainment. At a minimum, the application shall contain the information described in this section.

(b) Name. The application shall contain the name or names of the applicant. For a general partnership, the names of the individual partners. For a limited partnership, limited liability company, or corporation, the name of the entity. For applications with more than one person identified as the applicant, a principal applicant shall be identified for purposes of processing the application and receiving all correspondence and notices regarding the application and license.

(c) Location. The location of the place of entertainment for which the license is sought must be stated on the application. The proposed location must comply with the city’s zoning regulations.

(d) Class. The application must describe the nature of all business conducted at the commercial establishment, including but not limited to the type of Department of Alcoholic Beverage Control license held or anticipated, the hours that the place of entertainment will operate, the types of live entertainment that will be offered, and types and hours of other business operations.

(e) Site Plan. If required, the application for the license must include five copies of the proposed site plan for the establishment. The site plan must be an accurate representation with dimensions that show:

(1) The building’s footprint;

(2) Boundary and property lines;

(3) On-site parking spaces;

(4) Any changes to the site plan that have occurred since the original city building, fire, and planning division approval(s) and include a notation identifying the date the modification was approved by the city if such approval was required.

(f) Use Permits. The application must include a copy of any city land use permits (e.g., conditional use permit, zoning administrator permit, etc.) issued to the property owner or business entity for the premises.

(g) Security Plan. If required, the application must include a detailed security plan. The security plan should include, but is not limited to, the following:

(1) The number of security guards on duty;

(2) The minimum level of acceptable training for security guards;

(3) The patron screening procedure, if any, before admission to the establishment;

(4) Identify all patron access points into the establishment;

(5) Procedure for removal of disorderly or intoxicated patrons from the premises; and

(6) Dispersal of patrons from the establishment, on-site parking area, and public rights-of-way (e.g., sidewalk or street) within 50 feet of any entrance to the establishment.

(h) Copy of Application. For each Department of Alcoholic Beverage Control (ABC) license that has been issued for the commercial establishment, a complete copy of the license application and the current ABC license including all existing conditions.

(i) Signature. The application must be signed by the applicants. For a general partnership, the application shall be signed by each of the partners. For a limited partnership, the application for any license shall be signed by each of the general partners. For a limited liability company that has elected to be managed by its members, the application shall be signed by each member or by an officer authorized by the articles of organization or the operating agreement to bind the company. In the case of a limited liability company that has elected to be managed by a manager or managers, the application shall be signed by the manager or managers or by an officer authorized by the articles of organization or the operating agreement to bind the company. For a corporation, the application shall be signed by two officers of the corporation, one from each of the following categories:

(1) The chairperson of the board, the president, or a vice president; and

(2) The secretary, assistant secretary, chief financial officer, or assistant treasurer. (Ord. 4-2009 § 1, 1-27-09; Ord. 11-2009 § 3, 5-12-09; amended during 2012 reformat; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14106. Formerly 5.45.180.)

5.45.070 License application fee.

A place of entertainment license application or renewal application must be accompanied by a nonrefundable fee in an amount established by resolution of the city council, or it will not be considered complete. The fee required by this section is in addition to any other fees or taxes required under this code. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14107. Formerly 5.45.190.)

5.45.080 Service of notice.

Where the provisions of this chapter require service of notice on either an applicant or licensee, it is sufficient to serve the person as set forth in Section 1.10.080. When a license has multiple applicants or licensees, all applicants and licensees may be notified by addressing the notice to and serving the principal applicant or licensee as set forth in Section 1.10.080. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14108. Formerly 5.45.200.)

5.45.090 Investigation of application.

The chief of police shall conduct a thorough investigation of the application. The chief of police may require applicants and responsible persons to provide fingerprints for purposes of performing criminal background checks and is specifically authorized to access state and local criminal history information, and transmit fingerprint images and information to the Federal Bureau of Investigation, as set forth in Cal. Penal Code §§ 11105(b)(11) and 13300(b)(11). (Ord. 4-2009 § 1, 1-27-09; Ord. 11-2009 § 4, 5-12-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14109. Formerly 5.45.210.)

5.45.100 Inspections and authority of peace officers or police employees.

(a) The chief of police shall make, or cause to be made, regular inspections of all places of entertainment. Any peace officer shall have free access to any place of entertainment during normal operating hours.

(b) Any code compliance officer assigned by the chief of police to conduct inspections shall have free access to any place of entertainment during normal operating hours.

(c) The right of reasonable inspection to enforce the provisions of this chapter is a condition of the issuance of a license. The applicant or licensee shall acknowledge this right of inspection at the time of application. Refusal to acknowledge this right of inspection is grounds for denial of the application. The right of inspection includes the right to require identification from responsible persons or employees on the premises. The refusal to allow inspection upon reasonable demand or the refusal to show identification by responsible persons or employees is grounds for the suspension, revocation, or other regulatory action against the license. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14110. Formerly 5.45.220.)

5.45.110 Approval or denial of license.

(a) For new license applications, the chief of police shall issue a place of entertainment license for a Class 1 place of entertainment within 45 days and for a Class 2 place of entertainment within 30 days of receiving a complete application unless he or she finds one or more grounds for denial under subsection (b) of this section.

(b) The chief of police shall deny the license if:

(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 requirements of this chapter.

(4) The issuance of the license and the operation of a place of entertainment at the proposed location, as conditioned, is not consistent with federal, state and local laws, rules, and regulations, or any final administrative decision or court order.

(5) Either an applicant or any responsible person was convicted of a felony or other crime of moral turpitude that is substantially related to the qualifications, functions or duties of a proprietor of a place of entertainment.

(6) Either an applicant or any responsible person has a history of committing, permitting or failing to prevent significant violations of:

(A) City ordinances; or

(B) Any license or permit issued by any jurisdiction or government agency relating to or arising out of an establishment that if presently located in the city would be a place of entertainment. Notwithstanding Sections 5.45.120(b) and 5.45.170(b)(1), this subsection (b)(6)(B) does not apply to renewal applications or license discipline.

For purpose of determining what constitutes significant violations, factors the chief of police should consider include the frequency and pattern of violation and the seriousness of harm to public health or safety brought about or threatened by the violations.

(7) The applicant had a similar license or permit issued by another jurisdiction suspended or revoked in the last five years for an establishment that if presently located in the city would be a place of entertainment for reasons that would be grounds for the suspension or revocation of a license. Notwithstanding Sections 5.45.120(b) and 5.45.170(b)(1), this subsection does not apply to renewal applications or license discipline.

(8) The applicant made a material misrepresentation in the application, or on a previous application, for a place of entertainment license in the last five years.

(9) The applicant had a place of entertainment license revoked within five years before the date of the pending application.

(10) The place of entertainment is proposed to be located on the same premises as a place of entertainment that within the last five years:

(A) Surrendered its license or any land use permit or other approval necessary to operate a place of entertainment on the premises while an administrative, civil or criminal proceeding was pending against the licensee or operator for conduct arising out of the operation of the establishment; or

(B) Had its place of entertainment license revoked.

(c) The chief of police may deny an application that is incomplete and the required supplementary documents are not submitted within 20 days of a request for further information and documents. An applicant whose application is denied for incompleteness is not eligible to reapply for 90 days.

(d) If the chief of police denies the application, he or she shall notify the applicant of the reasons for the denial in writing, the right of appeal under this chapter, and that the failure to timely request an appeal will waive the applicant’s right to contest the decision. (Ord. 4-2009 § 1, 1-27-09; Ord. 11-2009 § 5, 5-12-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14111. Formerly 5.45.230.)

5.45.120 License renewal.

(a) It is the responsibility of a licensee to timely submit a complete renewal application. Failure to timely submit a renewal application may result in the expiration of the license before the renewal application is granted or denied.

(b) The chief of police shall approve a renewal of a license unless he or she finds that circumstances existed during the term of the license, existed at the time of submission of an application for renewal, or existed at any time during the review of the application for renewal that are inconsistent with any finding required for approval of a new license for the applicant or location or would justify the suspension or revocation of the license. Notwithstanding the above, the chief of police may add, delete or modify the license conditions as a condition of license renewal.

(c) If the chief of police denies the renewal application, he or she shall notify the applicant of the reasons for the denial in writing. An applicant denied a renewal license has a right to appeal the denial under Section 5.45.190. If a hearing is not requested within the prescribed time period, the denial is final. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14112. Formerly 5.45.240.)

5.45.130 Operating conditions.

(a) Required Compliance. All licensed places of entertainment must operate in accordance with the standards and conditions set forth in this section.

(b) Display of License. The license shall be displayed on the premises in a conspicuous place so that law enforcement persons entering may readily see the license. A copy of the floor plan approved with the license shall be made available at all times at the request of any law enforcement officer, fire marshal or deputy fire marshal, or code enforcement official.

(c) Hours of Operation. All places of entertainment shall otherwise close and all patrons shall vacate the premises between 2:00 a.m. and 6:00 a.m. unless the license is conditioned for additional hours of closure.

(d) Noise Restrictions. The following noise restrictions shall apply to all places of entertainment located in the downtown district; the noise restrictions set forth below shall apply:

(1) Places of Entertainment Outside of the Downtown District. No place of entertainment outside of the downtown district may cause, permit or maintain amplified sound audible beyond 75 feet from the structure containing the place of entertainment between the hours of 10:00 p.m. and 2:00 a.m.

(2) For places of entertainment within the downtown district, exterior noise levels may not exceed the levels shown in Table 5.45.130(d)(2).

Table 5.45.130(d)(2)
Fully Enclosed Structures
7:00 a.m. – 12:00 a.m.	75 dbA1
12:00 a.m. – 7:00 a.m.	65 dbA1
Outdoor Areas
7:00 a.m. – 10:30 p.m.	80 dbA2
10:30 p.m. – 7:00 a.m.	65 dbA2

1 Measured from building exterior (but not from residential balconies or stoops facing roadways).

2 Measured at property line.

(3) To the extent that these noise restrictions conflict with a special event permit issued pursuant to Chapter 12.25, the special event permit conditions shall control.

(e) Employee List. A list of all persons employed at the place of entertainment must be maintained on the premises. The list shall clearly identify the employee’s hire date, job title, and for employees required to complete beverage service training, the date each responsible beverage service training course was completed and the date the current training certificate will expire. A copy of each employee’s driver’s license or other government-issued identification shall also be maintained with the list. The list and employee identification copies shall be provided, upon request, to any police officer for inspection.

(f) Maximum Occupant Load. The maximum number of persons in a place of entertainment, other than employees, must not, at any time, exceed the maximum occupant load as established by the fire marshal or the city building official.

(g) Disturbing the Peace and Disorderly Conduct. Responsible persons must not allow any person to enter or remain inside the establishment, on any on-site parking lot owned, under the control, or used under agreement by the establishment, or on any sidewalk used by the establishment who the responsible person knows or reasonably should know has engaged in disturbing the peace, public drunkenness, drinking in public, harassment of passersby, gambling, prostitution, public urination, lewd conduct, drug trafficking, or excessive loud noise on the premises or at a location observable from the premises.

(h) Maintaining Adequate Right-of-Way. Patrons queuing on the public sidewalk must 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.

(i) Orderly Dispersal. Patrons must orderly disperse from the establishment. Patrons must not congregate in the establishment’s parking lot after closing time and must not congregate in any roadway or traffic lane within 50 feet of any entrance to the establishment.

(j) Comply with the Law. Obey all federal, state and local laws, including the provisions of this chapter.

(k) 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.

(l) Seating and Dance Areas.

(1) Seating areas shall not be converted to dance areas, unless the floor plan approved as part of the application process allows such conversion.

(2) During all hours in which dancing is permitted, no portion of the dancing area shall be used for any purpose other than dancing.

(m) Responsible Persons. In addition to any other obligations imposed by this chapter, this code, or any other law, responsible persons must:

(1) Make reasonable efforts to ensure compliance with the requirements of this section. The inability of responsible persons exercising reasonable efforts to prevent violations of these requirements shall not justify noncompliance but shall be taken into consideration by the chief of police when considering whether to renew a license or impose conditions or discipline.

(2) Not allow any person inside the establishment who was observed by establishment personnel, including contract security staff, committing a felony or misdemeanor inside the establishment, at any on-site parking lot owned, under the control, or used under agreement by the establishment, or on any sidewalk used by the establishment where the responsible person has reasonable cause to believe that the person committed a felony or misdemeanor.

(n) Security Cameras. Class 1 places of entertainment must install security cameras and provide for the recording and preservation of images captured by the cameras.

(o) Reasonable Passageway Required. A reasonable passageway for ingress and egress through any part of a room used by patrons or entertainers must be maintained at all times. (Ord. 4-2009 § 1, 1-27-09; Ord. 11-2009 § 6, 5-12-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14113. Formerly 5.45.250.)

5.45.140 Security.

The licensee shall comply with and ensure that the licensee’s owners, managers and employees comply with the standards for internal and external security arrangements specified below.

(a) For a Class 1 place of entertainment there shall be a minimum of three security guards on duty for up to and including the first 100 patrons on site. Once the number of patrons exceeds 100, there shall be the greater of five security guards on duty or one security guard per 75 patrons on site. “On site” means and includes all patrons within the premises and waiting in line to enter the premises.

(b) For a Class 2 place of entertainment, no security guard will be required unless the chief of police determines, based on specific articulated facts setting forth the necessity of the additional security guards, that the Class 2 place of entertainment shall comply with the security guard requirement of a Class 1 place of entertainment or some lesser security guard requirement.

(c) The security guard required to be on site pursuant to this section shall be on duty when the live entertainment begins or 9:00 p.m., whichever occurs earlier, and shall remain on duty for at least one-half hour after the place of entertainment has closed or after all patrons have vacated the area immediately surrounding the premises and the adjacent parking lots used by patrons, whichever occurs later in time.

(d) The security guard shall provide security inside the premises, along the outside perimeter of the premises, and at parking sites immediately adjacent to the premises and used by patrons. If found, security guard shall remove any illegal contraband from patrons, report its existence to the Fremont police department, identify the person in possession of the illegal contraband and immediately turn it over to the proper law enforcement authorities.

(e) All security guards shall register and maintain valid registration status with the state of California’s Department of Consumer Affairs (“state”). At no time shall any security guard register with the state at any level that is less than that of a proprietary private security officer. Proof of application and registration for all security guards shall be maintained by the licensee and shall consist of copies of all relevant documentation including: application forms, receipts for application fees and live scan fees, and actual proof of registration.

(f) At closing time, the security guards shall be responsible for clearing the licensee’s patrons from the sidewalk and street areas in front of the premises and from other areas accessible to persons around the perimeter and within 50 feet of the premises.

(g) While on duty, all security guards shall have a nameplate containing the security guard’s full name and the word “SECURITY” printed in bold, capital letters. The nameplate shall be exhibited prominently on the clothing, at chest level, and shall be visible and easily read at all times. The nameplate shall be a minimum of two inches high and four inches wide, with the required information printed in capital letters, at least three-fourths inches high and in a contrasting color. As an alternative to a nameplate, the security guard’s name and the word “SECURITY” may be embroidered on the security guard’s outermost garment with the required information meeting the above specifications and located at chest level.

(h) The licensee shall not allow any security guard to, and no security guard shall, sit at the bar, consume alcoholic beverages or any controlled substance, be under the influence of alcoholic beverages or any controlled substance, or engage in any other violations of law while on duty.

(i) The licensee shall not allow any security guard to be, and no security guard shall be, in possession of any firearm while on the premises without first having obtained a license from the appropriate state or local agency authorizing the security guard to be in possession of a firearm.

(j) If the licensee employs security guards that will be in possession of a firearm while on the premises, the security guard shall, no less than five business days prior to the date he or she will begin employment with the licensee, provide the chief of police with the following:

(1) A copy of the license issued to the security guard by the appropriate state or local agency authorizing him or her to possess such firearm;

(2) A copy of his or her law enforcement identification (if he or she is employed by a law enforcement agency); and

(3) A copy of his or her California driver’s license or California identification card. (Ord. 13-2015 § 1, 6-2-15.)

5.45.150 Chief of police may impose additional conditions.

(a) In addition to the conditions set forth in Sections 5.45.130 and 5.45.140, the chief of police may, at the time of license approval, license renewal (when conditions which existed at the time of issuance have changed significantly) or as part of license discipline under Section 5.45.170, impose additional conditions including but not limited to the following, based on specific, articulated facts setting forth the necessity for the conditions:

(1) The permissible days and hours of operation.

(2) Specific numbers of security guards to be on duty during business hours. Factors to be considered include attendance, nature of surrounding neighborhood, history of licensee for maintaining order and complying with all laws, and other factors reasonably related to safety.

(3) Prohibiting or conditioning the admission of minors to an establishment licensed as a place of entertainment.

(4) The development and implementation of written plans by the licensee addressing how the licensee will meet the requirements of this chapter and may include crowd management, parking management, noise management, complaint response, and performance improvement.

(5) Installation of security cameras and the recording and preservation of images captured by the cameras.

(6) Providing the chief of police advanced notice of the date of a particular event if not held as part of a regularly scheduled event of the business.

(7) Maintaining a current and accurate count of the occupant load at all times in written form immediately available for inspection upon request. The chief of police may require an automatic means of determining the actual occupant load within the building.

(8) Complying with more restrictive noise standards, including limiting audible amplified sound to the property line.

(9) Prohibiting persons under the age of 21 inside a commercial establishment while operating as a Class 1 place of entertainment.

(b) A licensee required to create an operational plan under this section shall consult with the chief of police who may comment on the plans, but the licensee shall remain solely responsible for the sufficiency and efficacy of the plans. (Ord. 4-2009 § 1, 1-27-09; Ord. 11-2009 § 7, 5-12-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14114. Formerly 5.45.260.)

5.45.160 Immediate threat to public safety.

The chief of police, fire marshal, or their designees may require a responsible party to cease all or part of a place of entertainment’s operations and disperse all patrons for a period of time up to and including the remainder of the establishment’s daily operating hours whenever conduct by disorderly patrons reaches a magnitude that presents an immediate threat to the health or safety of the patrons or general public in the vicinity of the establishment. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14115. Formerly 5.45.270.)

5.45.170 Grounds of revocation, suspension, or modification.

(a) After notice and an opportunity for a hearing, the chief of police may suspend, modify or revoke any license for any of the reasons set forth in subsection (b) of this section.

(b) A license may be modified, suspended or revoked if any of the following conditions are present:

(1) Facts exist sufficient to justify denying a license application under Section 5.45.110.

(2) The licensee or any responsible person has failed to comply with one or more conditions of the permit.

(3) An employee or contractor engaged in criminal conduct on the premises giving rise to a conviction for an offense set forth in Section 5.45.110(b)(5).

(4) The commercial establishment has repeatedly:

(A) Operated in an illegal or disorderly manner; or

(B) Unreasonably interfered with the use of neighboring properties; or

(D) Substantially interfered with the peace and enjoyment of surrounding neighborhoods.

(5) The applicant gave materially false, fraudulent or misleading information or has knowingly omitted a material fact in the application.

(6) The operation of the commercial establishment was adjudicated in a final administrative, civil, or criminal proceeding to have created a nuisance. For purposes of this subsection, an adjudication is complete when the decision is final and not stayed pending further appeal or review.

(7) Ownership of the commercial establishment has changed without the new ownership securing a new license.

(8) The place of entertainment failed to comply with the license issued by the Department of Alcoholic Beverage Control or any permit or license issued by the city. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14116. Formerly 5.45.280.)

5.45.180 Meeting before final licensing decision.

(a) This section applies to existing licenses only.

(b) The chief of police shall serve a notice of intent to modify, suspend or revoke a license or condition or deny a license renewal at least 14 calendar days before the effective date of the proposed licensing decision. The notice shall contain:

(1) A summary of the facts and evidence establishing the grounds for the condition, modification, suspension, or revocation.

(2) A statement that the licensee may request a meeting on the proposed licensing decision by submitting a request in writing to the chief of police within seven calendar days of the date of service of the notice or appeal the license decision as set forth in Section 5.45.190, and that the failure to either request a meeting or timely appeal waives the right to contest the decision.

(c) The licensee may request a meeting with the chief of police to present information as to why the proposed licensing decision should be modified or set aside by submitting a written request to the chief of police within seven calendar days of the date of service of the notice. Upon receipt of a request the chief of police, or his or her designee, shall schedule a meeting within five calendar days. The licensee may appear at the meeting with or by a representative. The chief of police shall render a written decision before the effective date of the proposed decision confirming, modifying or setting aside the proposed decision unless the chief of police and the licensee mutually agree in writing to extend the time to render a decision. The final decision shall inform the licensee of the right to appeal the decision to the city manager. (Ord. 4-2009 § 1, 1-27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14117. Formerly 5.45.290.)

5.45.190 Appeal to city manager.

(a) Any applicant or licensee wishing to contest a licensing decision denying a new license or license renewal, imposing modifications or conditions on a license, or suspending or revoking a license must timely appeal the matter to the city manager as set forth in this section. An applicant or licensee who fails to submit a timely notice of appeal waives the right to contest the licensing decision.

(b) A written notice of appeal contesting a license decision (“notice of appeal”) must be submitted to the city clerk within 10 calendar days after service of the chief of police’s decision. The notice of appeal shall specify and contain:

(1) The name, address, and phone number of the appellant and the principal applicant or licensee, and the name and location of the place of entertainment.

(2) The detailed factual basis for the appeal.

(3) A complete copy of the most recent application.

(4) A complete copy of the chief of police’s written decision.

(c) Upon receipt of a complete and timely filed notice of appeal, the city manager shall hire or appoint a hearing officer and schedule a hearing not less than five business days, nor more than 14 calendar days from the date of the filing of the notice of appeal with the city clerk or as soon thereafter as reasonably possible. The city manager shall serve a notice of the hearing on the principal applicant or licensee providing the date, time and place of the hearing.

(d) A hearing under this section shall be informal and open to the public. The hearing officer shall record the proceedings on audiotape. The hearing officer shall regulate the course of the proceeding and may permit nonparties to offer written or oral comments on the issues. The hearing officer may limit the use of witnesses, testimony, evidence, rebuttal, and argument. The hearing official may allow the cross-examination of witnesses to the extent necessary to ensure a fair hearing and may limit cross-examination of witnesses as necessary to maintain proper decorum.

(e) The city manager may establish rules or regulations governing the selection and duties of hearing officers to, among other things, ensure the impartiality and neutrality of hearing officers.

(f) The city bears the burden of proof at the hearing to establish facts sufficient to support the findings necessary for the licensing decision.

(g) All parties may be represented by counsel, and may present oral and written evidence. All relevant evidence may be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs. Relevant admissible evidence includes but is not limited to incident reports and witness affidavits. A formal oath is not required for witnesses to provide testimony.

(h) In the event that the applicant, licensee, or counsel representing the applicant or licensee fails to appear or present any evidence at the hearing, the hearing officer shall render a determination based on the evidence in the record and offered at the hearing by the chief of police.

(i) The hearing officer shall issue a determination to the city manager within 10 calendar days following completion of the hearing. The determination must make written findings of fact and recommend a decision based upon the findings. The findings of fact shall be supported by the weight of the evidence. The determination shall explain the reasons for the recommendation. The failure of the hearing officer to issue a timely decision shall not prejudice the city’s right to act in the matter.

(j) Within five days of receiving the hearing officer’s determination, the city manager shall render a final licensing decision based on the findings of fact contained in the hearing officer’s determination, or remand the matter to the hearing officer to clarify the findings, make additional findings, or take additional evidence. The city manager’s final licensing decision is conclusive as to the city and shall inform the applicant or licensee that the time limits to seek judicial review are governed by Cal. Civ. Proc. Code § 1094.6.

(k) The city council appeal provisions of Chapter 1.25 do not apply to administrative actions under this chapter. (Ord. 4-2009 § 1, 1-27-09; Ord. 11-2009 § 8, 5-12-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14118. Formerly 5.45.300.)

5.45.200 Violation.

(a) It is unlawful for any responsible person to establish, operate, or to allow or participate in the establishment or operation of a place of entertainment in violation of this chapter.

(b) Violation of this chapter is an offense that may be charged as set forth in Section 1.15.010.

(c) Violation of this chapter may be remedied by any means available to remedy a violation of this code. The remedies for violation of this chapter are cumulative. (Ord. 4-2009 § 1, 1‑27-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14119. Formerly 5.45.310.)

5.45.210 No duty created.

This chapter is not intended to create a mandatory duty on the part of the city to protect any person from any injury or damage arising out of the establishment, licensing, or operation of a place of entertainment. (Ord. 11-2009 § 9, 5-12-09; Ord. 13-2015 § 1, 6-2-15. 1990 Code § 5-14120. Formerly 5.45.320.)