Chapter 5.128
ADULT CABARETS
Sections:
5.128.020 License—Application.
5.128.040 License application by managers and entertainers.
5.128.060 Standards of conduct and operations.
5.128.080 Minors—Hours—Updating applications required.
5.128.090 License—Suspension or revocation—Notice.
5.128.100 Licensing—Compliance with other city ordinances—Inspection.
5.128.110 Violation a misdemeanor.
5.128.010 Definitions.
A. “Adult cabaret” means any commercial premises, including any cabaret premises, to which the public, patrons, or members are invited or admitted, and where an entertainer provides adult oriented entertainment, not constituting “adult entertainment,” as defined in Section 5.120.020 of this title, to any member of the public, patrons, or a member.
B. “Adult oriented entertainment” means:
1. Any exhibition, performance or dance of any type conducted in a premises where such exhibition, performance or dance is distinguished or characterized by a predominant emphasis on the depiction, description, simulation or relation to the following specified sexual activities:
a. Human genitals in a state of sexual stimulation or arousal;
b. Acts of human masturbation, sexual intercourse or sodomy; or
c. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast; or
2. Any exhibition, performance or dance which is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the premises activity. This includes, but is not limited to, any such exhibition, performance or dance performed for, arranged with or engaged in with fewer than all members of the public on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance and which is commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or straddle dancing.
C. “Applicant” means the individual or entity seeking an adult cabaret license in the city of Everett.
D. “Applicant control persons” means all partners, corporate officers and directors and any other individuals in the applicant’s business organization who hold a significant interest in the adult cabaret business, based on responsibility for management of the adult cabaret business.
E. “Clerk” means the city clerk of the city who is designated by the mayor as the licensing official under this chapter. It also includes his/her designee.
F. “Employee” means any and all persons, including managers, entertainers and independent contractors, who work in or at or render any services related to the operation of any cabaret.
G. “Entertainer” means any person who provides adult entertainment within an adult cabaret as defined in this section, whether or not a fee is charged or accepted for such entertainment.
H. “Manager” means any person who manages, directs, administers or is in charge of the affairs and/or conduct of any portion of any activity involving adult entertainment occurring at any adult cabaret, and includes assistant managers working with or under the direction of a manager to carry out such purposes.
I. “Operator” means any person operating, conducting or maintaining an adult cabaret.
J. “Person” means any individual, partnership, corporation, trust, incorporated or unincorporated association, marital community, joint venture, governmental entity, or other entity or group of persons, however organized.
K. “Member of the public” means any customer, patron, club member, or person, other than an employee as defined in this section, who is invited or admitted to a cabaret.
L. “Sexual conduct” means acts of (a) sexual intercourse within its ordinary meaning, occurring upon any penetration, however slight; or (b) any penetration of the vagina or anus, however slight, by an object; or (c) any contact between persons involving the sex organs of one person and the mouth or anus of another; or (d) masturbation, manual or instrumental, of oneself or of one person by another, or (e) touching of the sex organs, female breasts, or anus, whether clothed or unclothed, of one person by another. (Ord. 2269-98 § 1, 1998)
5.128.020 License—Application.
A. All applications for an adult cabaret license shall be submitted to the clerk in the name of the person or entity proposing to conduct an adult cabaret on the business premises and shall be signed by such person and certified as true under penalty of perjury. All applications shall be submitted on a form supplied by the city, which shall require the following information:
1. For the applicant and applicant control persons, provide names, any aliases or previous names, driver’s license number, if any, social security number if any, and business, mailing, and residential address, and business telephone number.
2. If a partnership, whether general or limited; and if a corporation, date and place of incorporation, evidence that it is in good standing under the laws of Washington, and name and address of any registered agent for service of process.
3. Whether the applicant or any partner, corporate officer, or director of the applicant holds any other licenses under this chapter or any license for similar adult entertainment or sexually oriented business, including motion picture theaters and panorams, from the city or another city, county or state, and if so, the names and addresses of each other licensed business.
4. A summary of the business history of the applicant and applicant control persons in owning or operating an adult entertainment or other sexually oriented business, providing names, addresses and dates of operation for such business, and whether any business license or adult entertainment license has been revoked or suspended, and the reason therefor.
5. For the applicant and applicant control persons, any and all criminal convictions or forfeitures within five years immediately preceding the date of the application, other than parking offenses or minor traffic infractions, including the dates of conviction, nature of the crime, names and location of court and disposition.
6. For the applicant and applicant control persons, a description of business, occupation or employment history for the three years immediately preceding the date of application.
7. Authorization for the city, its agents and employees to seek information to confirm any statements set forth in the application.
8. The location and doing-business-as name of the proposed adult cabaret, including a legal description of the property, street address, and telephone number, together with the name and address of each owner and lessee of the property.
9. Two one-and-one-quarter-inch by one-and-three-quarter-inch color photographs of the applicant and applicant control persons. There is a five-dollar fee for the photographs.
10. A complete set of fingerprints for the applicant and applicant control persons, by Everett police department employees. There is a ten-dollar fee for the set of fingerprints.
11. A scale drawing or diagram showing the configuration of the premises for the proposed adult cabaret, including a statement of the total floor space occupied by the business, and marked dimensions of the interior of the premises. Performance areas, seating areas, manager’s office and stations, restrooms and service areas shall be clearly marked on the drawing. An application for a license for an adult cabaret shall include building plans which demonstrate conformance with the Everett Zoning Code.
B. An application shall be deemed complete upon the applicant’s provision of all information requested above, including the identification of “none” where that is the correct response, and the applicant’s verification that the application is complete. The clerk may request other information or clarification in addition to that provided in a complete application where necessary to determine compliance with this chapter.
C. A nonrefundable application fee of three hundred fifty dollars must be paid at the time of filing an application in order to defray the costs of processing the application.
D. If any person or entity acquires, subsequent to the issuance of an adult cabaret license, a significant interest based on responsibility for management or operation of the licensed premises or the licensed business, notice of such acquisition shall be provided in writing to the city clerk, no later than twenty-one days following such acquisition. The notice required shall include the information required for the original adult cabaret license application.
E. The adult cabaret license, if granted, shall state on its face the name of the person or persons to whom it is issued, the expiration date, the doing-business-as name and the address of the licensed adult cabaret. The permit shall be posted in a conspicuous place at or near the entrance to the adult cabaret so that it can be easily read at any time the business is open.
F. No person granted an adult cabaret license pursuant to this chapter shall operate the adult cabaret business under a name not specified on the license, nor shall any person operate an adult cabaret under any designation or at any location not specified on the license.
G. Upon receipt of the complete application and fee of three hundred fifty dollars, the clerk shall provide copies to the police, fire and planning departments for their investigation and review to determine compliance of the proposed adult cabaret with the laws and regulations which each department administers. Each department shall, within thirty days of the date of such application, inspect the application and premises and shall make a written report to the clerk whether such application and premises complies with the laws administered by each department. No license may be issued unless each department reports that the application and premises comply with the relevant laws. In the event the premises is not yet constructed, the departments shall base their recommendation as to premises compliance on their review of the drawings submitted in the application. Any adult cabaret license approved prior to premises construction shall contain a condition that the premises may not open for business until the premises have been inspected and determined to be in substantial conformance with the drawings submitted with the application. A department shall recommend denial of a license under this subsection if it finds that the proposed adult cabaret is not in conformance with the requirements of this chapter or other law in effect in the city. A recommendation for denial shall cite the specific reason therefor, including applicable laws.
H. An adult cabaret license shall be issued by the clerk within thirty days of the date of filing a complete license application and fee, unless the clerk determines that the applicant has failed to meet any of the requirements of this chapter or provide any information required under this subsection or the applicant has made a false, misleading or fraudulent statement of material fact on the application for a license. The clerk shall grant an extension of time in which to provide all information required for a complete license application upon the request of the applicant. If the clerk finds that the applicant has failed to meet any of the requirements for issuance of an adult cabaret license, the clerk shall deny the application and notify the applicant in writing and shall cite the specific reasons therefor, including applicable law. Such decision of the clerk shall be final and conclusive as of the date of the notification, unless within fifteen days following the notification, the applicant obtains a writ of certiorari or other judicial review from the superior court of Washington for Snohomish County, for purpose of review of the clerk’s denial. If the applicant obtains such a writ of certiorari or other judicial review from the superior court of the Washington for Snohomish County, the clerk’s denial will be stayed. The applicant will be provided a temporary permit. Such temporary permit will remain in effect until a final judicial determination on the merits is reached.
I. If the clerk fails to issue or deny the license within thirty days of the date of filing of a complete application and fee, the applicant shall be permitted, subject to all other applicable law, to operate the business for which the license has been denied, but in no event may the clerk extend the application review time for more than an additional twenty days. (Ord. 2269-98 § 2, 1998)
5.128.030 License—Required.
A. It is unlawful for any person to conduct, manage or operate an adult oriented cabaret unless such person is the holder of a valid and subsisting license from the city to do so, obtained in the manner provided in this chapter.
B. It is unlawful for any entertainer, employee or manager to knowingly work in or about, or to knowingly perform any service or entertainment directly related to the operation of an unlicensed adult oriented cabaret.
C. It is unlawful for any entertainer to perform in an adult oriented cabaret unless such person is the holder of a valid and subsisting license from the city to do so.
D. It is unlawful for any manager to work in an adult oriented cabaret unless such person is the holder of a valid and subsisting license from the city to do so.
E. The license year shall be from February 1st to January 31st of the following year. All licenses shall expire on the 31st day of January each year. Except as hereinafter provided, all license fees shall be payable on an annual basis and shall not be refundable. Annual license fees shall be three hundred fifty dollars per year for an adult cabaret license.
F. License fees shall not be prorated, except that if the original application for license is made subsequent to July 31st in any year, the license fee for the remainder of that year shall be one-half of the annual license fee. Licenses issued under this chapter may not be assigned or transferred.
G. Applications for renewal of licenses issued under this chapter shall be filed with the clerk on or before the expiration date provided for in this section in the same manner as the original application providing the clerk with current information and accompanied by payment of the same fees as are in effect for an original application for that license for the license year applied for. (Ord. 2269-98 § 3, 1998)
5.128.040 License application by managers and entertainers.
A. All applications for a manager’s or entertainer’s license shall be signed by the applicant and notarized or certified to be true under penalty of perjury. At the time of application, a picture shall be taken of the applicant by the city clerk. At the time of application, each applicant for a manager’s or entertainer’s license shall pay the annual license fee of fifty-five dollars, and a fee in the amount of five dollars to cover the cost of the picture required by this chapter. All applications shall be submitted on a form supplied by the city clerk, which shall require the following information:
1. The applicant’s name, home address, home telephone number, date and place of birth and any stage names or nicknames used in entertaining.
2. With the application an applicant shall present picture identification which shall include:
a. A motor vehicle operator’s license issued by any state bearing the applicant’s photograph and date of birth; or
b. A state-licensed identification card bearing the applicant’s photograph and date of birth; or
c. A current and valid passport.
B. The clerk, upon presentation of such applications and before acting upon the same, shall refer such applications to the police department, which shall make a full investigation as to the truth of the statements contained therein.
C. The license shall be issued by the clerk within thirty days of the date of filing a complete license application and fee, unless the clerk determines that the applicant has failed to meet any of the requirements of this chapter or provide any information required under this subsection or that the applicant has made a false, misleading or fraudulent statement of material fact on the application for a license. The clerk shall grant an extension of time in which to provide all information required for a complete license application upon the request of the applicant.
Pending the approval/denial of a completed license application, an entertainer or manager will be provided a temporary permit to be an entertainer or manager and such temporary permit shall automatically expire and become null and void upon the approval/denial of a license. Any entertainer or manager issued a temporary permit shall comply with the provisions of this chapter and such permit shall be withdrawn by the city in the event the permittee violates any provisions of this chapter. Additionally, any entertainer or manager issued a temporary permit shall be subject to the penalty provisions provided in this chapter.
If the clerk finds that the applicant has failed to meet any of the requirements for issuance of a manager’s or entertainer’s license, the clerk shall deny the application in writing and shall cite the specific reasons therefor, including applicable law. Such decision of the clerk shall be final and conclusive as of the date of the notification, unless within fifteen days following the notification, the applicant obtains a writ of certiorari or other judicial review from the superior court of Washington for Snohomish County, for purpose of review of the clerk’s denial. If the applicant obtains such a writ of certiorari or other judicial review from the superior court of the Washington for Snohomish County, the clerk’s denial will be stayed. The applicant will be provided a temporary permit. Such temporary permit will remain in effect until a final judicial determination on the merits is reached. Any manager or entertainer issued a temporary permit shall comply with the provisions of this chapter and such permit shall be withdrawn by the city in the event the permittee violates any provisions of this chapter. Additionally, any manager or entertainer issued a temporary permit shall be subject to the penalty provisions provided in this chapter. (Ord. 2269-98 § 4, 1998)
5.128.050 Attendance.
A. One or more licensed managers shall physically be on the premises of an adult cabaret at all times that adult oriented entertainment is being provided.
B. Standards of Conduct.
1. The owner shall provide that, and one or more licensed managers shall ensure that, he or she is located in a position so that all adult oriented entertainment on the premises is visible to a manager at all times.
2. a. Any owner or manager licensed under this chapter shall be accountable, responsible and liable as provided herein for the conduct of any employee whose standards of conduct are regulated by this chapter.
b. The licensed manager or owner shall not knowingly permit any employee, as defined in this chapter, to violate any provisions of this chapter.
c. “Knowingly permit,” for purposes of this section, shall be defined as an owner or manager being aware of a fact, circumstance or result that is defined in this chapter as being unlawful and permitting that unlawful conduct to occur or failing to take reasonable steps to stop such conduct from continuing to occur.
3. It is unlawful for a licensed owner or manager to fail to comply with any of the requirements of this section. A violation of this section shall be a misdemeanor with a maximum sentence of ninety days in jail and a one thousand dollar fine. (Ord. 2659-02 § 1, 2002: Ord. 2269-98 § 5, 1998)
5.128.060 Standards of conduct and operations.
The following standards of conduct must be adhered to by employees and entertainers of any adult cabaret which offers, conducts or maintains adult oriented entertainment:
A. No employee or entertainer shall be unclothed or in such attire, costume or clothing so as to expose to view any portion of the female breast below the top of the areola, or any portion of the pubic hair, anus, buttocks, vulva and/or genitals.
B. No employee or entertainer shall wear or use any device or covering exposed to view which simulates the breast of a female below the top of the areola, vulva or genitals, anus, and/or buttocks, or any portion of the pubic hair.
C. No employee or entertainer shall touch, fondle or caress any patron for the purpose of arousing or exciting the patron’s sexual desires; sit on a patron’s lap or separate a patron’s legs.
D. No employee or entertainer shall perform actual or simulated acts of sexual conduct, as defined in this chapter, or any act which constitutes a violation of Chapter 7.48 RCW, the Washington Moral Nuisances Statute.
E. No employee or entertainer mingling with patrons shall conduct any dance, performance or exhibition in or about the nonstage area of the public place of adult oriented entertainment unless that dance, performance or exhibition is performed at a torso-to-torso distance of no less than four feet from the patron or patrons for whom the dance, performance or exhibition is performed.
F. There shall be posted and conspicuously displayed in the common areas of each place offering adult oriented 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.
G. Every place offering adult oriented entertainment shall be physically arranged in such a manner that:
1. The stage on which adult oriented 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.
2. No adult oriented entertainment occurring on the premises shall be visible at any time from any public place.
H. A sign shall be conspicuously displayed in the common areas of the premises, and shall read as follows:
THIS ADULT CABARET IS REGULATED BY THE CITY OF EVERETT;
Entertainers are not permitted to expose any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or human male genitals in a discernibly turgid state, even if completely and opaquely covered.
I. No tip or gratuity offered to or accepted by an entertainer may be offered or accepted prior to any performance, dance or exhibition provided by the entertainer. No entertainer performing upon any stage area shall be permitted to accept any form of gratuity offered directly to the entertainer by any member of the public. Any gratuity offered to any entertainer performing upon any stage area must be placed into a receptacle provided for receipt of gratuities by the adult cabaret or provided through a manager on duty on the premises. Any gratuity or tip offered to any entertainer conducting any performance, dance or exhibition in or about the nonstage area of the adult cabaret shall be placed into the hand of the adult entertainer or into a receptacle provided by the adult entertainer, and not upon the person or into the clothing of the entertainer. (Ord. 2269-98 § 6, 1998)
5.128.070 Illumination.
Sufficient lighting shall be provided in and about the parts of the premises which are open to and used by the public so that:
A. All objects are plainly visible at all times; and
B. All parts of such premises shall be illuminated so that patrons or others on any part of the premises shall be able to read the Washington State Liquor Control Board card or other written instrument, printed in eight-point type, which is attached as Exhibit A to the ordinance from which this section derives. It or an accurate photocopy or other reproduction thereof is presumed admissible in any judicial proceedings commenced under this chapter. (Ord. 2269-98 § 7, 1998)
5.128.080 Minors—Hours—Updating applications required.
A. Minors.
1. No adult cabaret shall employ any person under the age of eighteen years as an entertainer or allow an entertainer on its premises for the purpose of providing adult oriented entertainment if the person is under eighteen years of age.
2. No person under the age of eighteen years shall be admitted to an adult cabaret.
3. No person under the age of eighteen years shall be licensed as a manager or entertainer for an adult cabaret.
B. Business Hours. An adult cabaret shall be closed between two a.m. and eight a.m.
C. Information. It is the duty of all licensees issued licenses or permits under this chapter to keep the information on their license applications current at all times. (Ord. 2269-98 § 8, 1998)
5.128.090 License—Suspension or revocation—Notice.
A. The city clerk may suspend or revoke any license issued pursuant to this chapter for a period of time not to exceed one year where one or more of the following conditions exist:
1. The license was provided by fraud or false representation of fact in the application or in any report or record required to be filed with the clerk;
2. The building, structure, equipment, operation or location of the business for which the license was issued does not comply with the requirements or fails to meet the standards of this chapter;
3. The licensee, his or her employee, agent, partner, director, officer or manager has violated or permitted violation of any of the provisions of this chapter.
B. The procedure for revoking or suspending a license under this chapter shall be the following: Upon determining that grounds for revocation or suspension exist, the city clerk shall send the licensee a notice of intent to revoke or suspend the license. Such notice shall set forth the grounds for suspension or revocation and schedule a hearing before the clerk or his/her designee. The hearing shall be held no earlier than ten and no later than thirty days from the date of notice of intent to revoke. The licensee shall be permitted to present evidence in support of his position at the hearing. Within two working days after the hearing, the hearing examiner shall notify the licensee in writing of his/her determination and reasons therefor. The decision of the hearing examiner will be stayed pending a final judicial determination on the merits, unless the licensee fails to obtain a writ of certiorari or other judicial review from the superior court of the state of Washington for Snohomish County within fifteen days of the effective date of the hearing examiner’s decision. If the licensee fails to obtain such judicial review within fifteen days following the effective date of the hearing examiner’s decision, the city attorney may invoke the aid of the appropriate court to secure enforcement and compliance with the hearing examiner’s decision. (Ord. 2269-98 § 9, 1998)
5.128.100 Licensing—Compliance with other city ordinances—Inspection.
A. All other city approvals and permit issuance other than those specifically set forth in this chapter including but not limited to business and occupations tax license, fire, building and zoning permits, are separate from the licensing process set forth in this chapter, notwithstanding Chapter 5.04 of this title. The granting of any license or the providing of any approval pursuant to this chapter shall not be deemed to be an approval of any city permit or approval not specially set forth in this chapter.
B. Licensees operating premises licensed under this chapter shall hold those areas upon the premises which are accessible to the public open for routine regulatory inspections by the city during business hours to ensure compliance with the requirements of this chapter. This section shall not restrict or limit the right of entry vested in any law enforcement agency or the fire department. (Ord. 2269-98 § 10, 1998)
5.128.110 Violation a misdemeanor.
Any person knowingly violating any of the provisions of this chapter is guilty of a misdemeanor and upon conviction thereof, shall be punishable by a fine not to exceed one thousand dollars or imprisonment in jail not to exceed ninety days, or both imprisonment and fine. Each separate day or any portion thereof, during which any violation of any provision of this chapter occurs or continues, shall be deemed a separate and distinct offense. (Ord. 2269-98 § 11, 1998)
5.128.120 Exemptions.
A. This chapter shall not be construed to prohibit:
1. Plays, operas, musicals, or other dramatic works that are not obscene;
2. Classes, seminars and lectures which are held for serious scientific or educational purposes and which are not obscene; or
3. Exhibitions, performances, expressions or dances that are not obscene.
These exemptions shall not apply to the sexual conduct described in RCW 7.48A.010(2)(b).
B. Whether or not activity is obscene, shall be judged by consideration of the following factors:
1. Whether the average person, applying contemporary community standards, would find that the activity taken as a whole appeals to a prurient interest in sex; and
2. Whether the activity depicts or describes in a patently offensive way, as measured against community standards, sexual conduct as described in RCW 7.48.010(2)(b); and
3. Whether the activity taken as a whole lacks serious literary, artistic, political or scientific value. (Ord. 2269-98 § 12, 1998)