[Adopted 9-10-2009 by Ord. No. 506]
A.
Every licensed business shall conduct its business and maintain its business premises and the area surrounding its business which is routinely used by the patrons of the business in compliance with and not in violation of all applicable provisions of this Code and of state law regarding offenses involving the public safety, particularly for purposes of this section, all applicable provisions of Chapters 67, 87, 99 and 135 of this Code, 11 Del. C. and 16 Del. C., and including applicable provisions of 21 Del. C., in, on or about the business premises and any adjacent or accessory parking lot so that any such business does not constitute a disorderly establishment. Whenever the owner or operator, or agent for the owner or operator, conducts a business licensed under this chapter and there have been two or more separate events occurring within a twelve-month period on the business premises, the business shall be considered a disorderly establishment, and the provisions of this section may be invoked.
B.
DISORDERLY ESTABLISHMENT
EVENT
(1)
(2)
(a)
(b)
(c)
IN ON OR ABOUT THE PREMISES
Definitions. The following words, terms and phrases, when used in
this section, shall have the meanings ascribed to them in this section,
except where the context clearly indicates a different meaning:
Any business, whether or not it lawfully stores or sells
alcoholic beverages for consumption on or off the premises, where
acts are performed or activities are conducted, whether inside or
outside the business premises by representatives or employees of the
owners, the owners themselves or patrons of the business, which are
contrary to the rules of good order and behavior, violative of the
public peace, indecent, or which tend to corrupt the morals of the
community, promote breaches of the peace, or create a public inconvenience
annoyance or alarm or nuisance to the neighborhood in which it is
located, and the business licensee or his authorized agents knew or
should have known or were advised of the activities and failed to
control those activities, either inside or, if outside, on the business
premises.
One which either:
Involves at least one offense enumerated in Subsection D of
this section; or
Has been the subject of a computer assisted dispatch or of a
written police report (with or without an arrest or conviction); and
Occurred on or outside of the business premises but within the
perimeter of the lot on which the business is located or in or on
any adjacent or accessory parking lot that is owned or leased for
use by that business and occurs during the hours of use of the business
and lot by the business or its patrons; or
The phrase "in on or about the business premises" shall mean
any area located within 500 feet of the property line of the licensed
business or within the reasonable area where activities located to
the business are likely to occur.
Was initiated inside the business premises.
Any area located within 500 feet of the property line of
the licensed business.
C.
For the purpose of identifying and eliminating nuisance establishments,
the Town Manager or his or her designee or such other person as the
Council may hereafter designate may confer with the Council, the Town
Solicitor or designee, the Public Safety Department, and the Chief
of Police to gather information on nuisance establishments and share
recommendations as to the elimination of nuisance establishments.
[Amended 8-12-2010 by Ord. No. 519]
D.
Alleged offenses. The provisions of this section shall be applicable
if any of the following violations are alleged to have occurred, any
violation of the Code of the Town of Elsmere, Titles 4, 11, 16 or
21 of the Code of the State of Delaware. The provisions of this section
shall further be applicable if offenses occur in, on or about the
business premises or accessory parking lot which for the purpose of
this section shall mean any area located within 500 feet of the property
line of the licensed business.
E.
License suspension or revocation. Upon the occurrence of two events involving any of the alleged offenses, or upon the recommendation of any of the persons described in Subsection C above, the Town Manager or his or her designee or such other person as the Council may hereafter designate may reasonably conclude that the business constitutes a disorderly establishment, and the business license for such business so operated may be suspended for up to 30 days. Such business license may thereafter be suspended again for a maximum of 60 days or may be revoked only if:
[Amended 8-12-2010 by Ord. No. 519]
F.
Limitations. The provisions of this section shall not be applicable
if the owner or operator can demonstrate to the satisfaction of both
the Chief of Police and the Town Manager or his or her designee or
such other person as the Council may hereafter designate that the
events concerning which the provisions of this section would otherwise
apply did not have their origin in or on the owner's or operator's
business premises or were clearly beyond the reasonable control of
such owner or operator, or the authorized agent for the same.
[Amended 8-12-2010 by Ord. No. 519]
G.
Voluntary action by licensee. The owner, operator, or agent of any
business licensed under this chapter voluntarily may take steps to
reduce or eliminate the criminal activity taking place on or about
the premises, such as cutting back nighttime operating hours, hiring
private security, increasing lighting, and other like measures. The
Town Manager or his or her designee or such other person as the Council
may hereafter designate in his discretion may accept these measures
in lieu of suspending a license until, if and when more qualifying
events occur.
[Amended 8-12-2010 by Ord. No. 519]
H.
Appeals. Any business licensee aggrieved by a suspension or revocation,
pursuant to this section, of the Town Manager or his or her designee
or such other person as the Council may hereafter designate may appeal
to the Superior Court of the State of Delaware, within 15 days of
receipt of written notice of the suspension or revocation being appealed.
Any appeal to the Superior Court shall act as a stay of that suspension
or revocation until a decision has been rendered by the Court in that
appeal proceeding, or until there has been a final decision in any
appeal of such decision of the Court.
[Amended 8-12-2010 by Ord. No. 519]
I.
Business license ineligibility. Subject to exception, the owner or
co-owner(s) or agent for the owner or co-owner(s) of a business that
was licensed by the Town, which license was revoked as a result of
legal action taken by law enforcement authorities of the Town or of
New Castle County or by those of the state or by those of federal
authorities, or by any combination of such law enforcement authorities,
to enforce city, state or federal code requirements or criminal laws
as to activities at such business or its location, including nuisance
abatement actions for illegal drug, prostitution, or similar prohibited
activities, shall not be eligible for up to one year from the date
of such license revocation to obtain a business license to reopen
the same business, or to open any other business at the same or any
other location in the Town.
A.
Findings of fact. The following conditions exist with regard to entertainment
clubs open to the public.
B.
CLUB PREMISES
ENTERTAINMENT CLUB
PERSON
Definitions. As used in this section, the following terms shall have
the following meanings, unless the context clearly indicates that
a different meaning is intended:
Any place where an entertainment club is operated or maintained,
including all hallways, bathrooms, parking areas and other adjacent
portions of the premises which are accessible to the public during
operating hours.
Any commercial premises which are open to the public, the
primary function of which is to offer patrons an opportunity to engage
in social activities such as dancing, roller-skating, ice skating
or the enjoyment of live or prerecorded music, or the enjoyment of
entertainment provided by dancers or other performers. As an incidental
function, an entertainment club may sell and serve food and beverages
to its patrons. The term "entertainment club" does not include the
following: theaters where the patrons sit in parallel rows of fixed
seats; full-service restaurants or other premises serving food and/or
alcoholic beverages where the only entertainment consists of background
music which is incidental to the primary function of serving food
and/or alcohol; outdoor performances; a banquet, party or celebration
conducted or invited guests which is not open to the public; dances
or events sponsored and operated by a governmental entity, an educational
institution, or nonprofit religious, charitable, benevolent, fraternal,
or social organization.
One or more natural persons, corporations, partnerships,
associations, or other entities capable of having an action at law
brought against such entity.
C.
Entertainment club license required. It is unlawful for any person
to own, lease, operate, manage or maintain an entertainment club in
the Town of Elsmere without first obtaining an entertainment club
license from the Town. For multiuse facilities which include an entertainment
club, a separate and additional license must be issued for the entertainment
club operation.
D.
License application procedures. In addition to the application procedures referred to in Subsection E of this section, an applicant for an entertainment club license shall provide the following:
(1)
A written statement setting forth all measures proposed to insure
that adequate traffic control, crowd protection and security, both
inside and outside the premises, will be maintained during operating
hours, within one hour of opening and within one hour of closing operations.
(2)
A statement of the proposed schedule of operating hours and days.
(3)
A statement of whether the applicant, or the applicant's officers,
directors, partners or any other person involved in the operation
or management of the entertainment club has been convicted within
the preceding five years of any crimes involving firearms, gambling,
racketeering, controlled substances, sexual offenses, prostitution,
assault, or contributing to the delinquency of a minor.
E.
Procedures for issuance or denial of license. After receiving a complete application for an entertainment club license, as specified in Subsection D above, the Town shall follow the following procedures:
[Amended 8-12-2010 by Ord. No. 519]
(1)
The Town Manager or his or her designee or such other person as the
Council may hereafter designate shall forward copies of the application
to appropriate Town officials for their comments regarding compliance
with the Town Code. The Town Manager or his or her designee or such
other person as the Council may hereafter designate shall consider
all materials and comments submitted and shall issue or deny the license
within 10 working days after the date on which a completed application
was filed unless the applicant agrees to an extension of the time
period in writing.
(2)
An entertainment club license shall be denied by the Town Manager
or his or her designee or such other person as the Council may hereafter
designate for any one or more of the following grounds:
(a)
If the business premises do not comply with all applicable Town
ordinances and state laws;
(b)
If the application is incomplete or if it contains any material
misrepresentation;
(c)
If the application does not show adequate measures for the protection
of the public health, safety and welfare in terms of traffic control,
crowd protection and security, both inside and outside the premises,
during operating hours, within one hour of opening and within one
hour of closing operations.
(3)
If the Town Manager or his or her designee or such other person as
the Council may hereafter designate denies a license, written notice
of the denial stating the reasons why shall be sent to the applicant
within two working days after the denial. The applicant shall have
a period of 10 working days after the date of license denial to appeal
in the manner provided by ordinance for administrative review.
F.
Operating rules and regulations. The following operating rules and
regulations shall apply to all entertainment clubs in the Town:
(1)
The standards of conduct applicable to all businesses in the Town
shall apply to entertainment clubs.
(2)
It shall be the obligation of the licensee to employ an adequate
number of qualified security personnel who will be present on club
premises during all operating hours to maintain peace and order and
to ensure compliance with all applicable laws of the state and of
the Town.
(3)
It shall be the obligation of the licensee to remove from the club
premises any person whose conduct poses a physical danger to the safety
of others present.
(4)
It shall be the obligation of the licensee to prevent loitering,
the creation of public nuisances or disturbances of the peace by any
patrons of the entertainment club on club premises or in the immediate
vicinity. "Loitering" shall not include the act of waiting in line
to gain admission to the club.
(5)
It shall be the obligation of the licensee to clean up all litter
resulting from club operations. The cleanup shall occur within five
hours after the end of each day's operation and shall extend
for a two-block radius around the club.
G.
Access by police officers. All police officers of the Town shall
have free access to all entertainment clubs for the purpose of inspection
and to enforce compliance with the provisions of this article at all
times that the premises are open to the patrons.
H.
Suspension or revocation of licenses.
(1)
The Town Manager or his or her designee or such other person as the
Council may hereafter designate may, when reasonably necessary, suspend
an entertainment club license whenever the licensee, or any manager,
officer, director, agent, or employee of the licensee has caused,
permitted or knowingly done any of the following:
[Amended 8-12-2010 by Ord. No. 519]
(a)
Failed to keep the building structure or equipment of the licensed
premises in compliance with the applicable health, building, fire
or safety laws, regulations or ordinances in a way which relates to
or affects public health or safety on the entertainment club premises.
(2)
Such suspension shall remain in effect until the conditions causing
the suspension are resolved and reasonable measures are taken to ensure
that the same will not reoccur as determined by the Town Manager or
his or her designee or such other person as the Council may hereafter
designate.
[Amended 8-12-2010 by Ord. No. 519]
(3)
The Town Manager or his or her designee or such other person as the
Council may hereafter designate may, when reasonably necessary, revoke
an entertainment club license on any one or more of the following
grounds:
[Amended 8-12-2010 by Ord. No. 519]
(a)
Whenever the Town learns that the licensee made a material false
statement or representation, or failed to disclose any material information
to the Town, in connection with any application for the entertainment
club license or any license renewal.
(b)
Whenever the licensee or any manager, officer, director, agent
or employee of the licensee fails within a reasonable time to resolve
a condition that caused a license suspension.
(c)
Whenever the licensee or any manager, officer, director, agent
or employee of the licensee knowingly permits conduct on the licensed
premises that violates any federal, state or Town criminal or penal
statute, law or ordinance.
(d)
Whenever operation of the entertainment club becomes the proximate
cause of a significant increase in criminal activity on the premises
or in the immediate vicinity in such a way as to endanger persons
or property.
(4)
The suspension or revocation of a license may be appealed to the
Superior Court of the State of Delaware.
The provisions of this article are severable. If any provision
of this article or its application to any person or circumstance is
held invalid, such invalidity shall not affect other provisions or
applications of this article which can be given effect without the
invalid provisions or application.
Any violation of this article is declared to be a nuisance.
In addition to any other relief provided by this article, the Town
Solicitor or designee may apply to a court of competent jurisdiction
for an injunction to prohibit the continuation of any violation of
this article. The application for relief may include seeking a temporary
restraining order, temporary injunction and permanent injunction.
Any person, firm, or corporation violating any provision of
this article shall be fined not less than $250 nor more than $1,000
for each offense, and a separate offense shall be deemed committed
on each day during or on which a violation occurs or continues.
