A.
The Department of Community Improvement is responsible
for granting, denying, revoking, renewing, suspending and canceling adult
use licenses for proposed or existing adult use establishments and for ascertaining
whether an adult use establishment is licensed or whether a licensed establishment
complies with or is complying with this chapter.
B.
Any law enforcement officer, code enforcement officer,
fire chief or building official shall, at any reasonable hour, when the Department
has reasonable cause to believe that a violation of this chapter may exist,
have access to and shall have the right to inspect the premises of all licensees
under this chapter for compliance with any or all of the applicable codes,
statutes, ordinances and regulations in effect in South Pasadena and within
the responsibilities of their respective department. Such employee shall require
strict compliance with the provisions of this chapter. Reports of violations
shall be reported to the Department of Community Improvement.
No adult use establishment shall be permitted to operate without having
been first granted an adult use license by the Department of Community Improvement.
Any adult use shall be classified as an adult bookstore, adult theater, adult
photographic or modeling studio, physical culture establishment or special
cabaret or any combination of these uses based on the information in the application
subject to subsequent inspection for verification.
A.
Required. Any person desiring to operate an adult use establishment shall file with the Department of Community Improvement a sworn license application containing all the information listed in § 147-13B.
B.
Contents of application. The application shall contain
the following:
(1)
Name and address; if the applicant is:
(a)
An individual, the individual shall state his legal name
and any aliases and submit satisfactory proof that he is eighteen (18) years
of age.
(b)
A partnership, the partnership shall state its complete
name and the names of all partners having either direct, managerial, supervisory
or advisory responsibilities for day-to-day operations of the adult use and
whether the partnership is general or limited.
(c)
A corporation, the corporation shall state its complete
name, the date of its incorporation, evidence that the corporation is in good
standing, the names and capacity of all officers, directors and stockholders
having either direct, managerial, supervisory of advisory responsibilities
for day-to-day operations of the adult use and the name of the registered
corporate agent and the address of the registered office for service of process.
(2)
If the applicant intends to conduct the establishment
under a name other than that of the applicant, the establishment's fictitious
name and a certified copy of the applicant's registration with the Division
of Corporations of the Department of State under F.S. § 865.09 (1993).
(3)
Whether the applicant or any of the other individuals listed pursuant to § 147-13B(1) has, within the five-year period immediately preceding the date of the application, been convicted of a specified criminal act and, if so, the specified criminal act involved, the date of conviction and the place of conviction.
(4)
Whether the applicant or any of the other individuals listed pursuant to § 147-13B(1) has had a previous license or permit, under this or any other ordinance regulating adult uses, suspended or revoked or has, by court order, been required to cease operation, including the name and location of the establishment for which the license was suspended or revoked, as well as the date of the suspension or revocation, and whether the applicant or any other individuals listed pursuant to § 147-13B(1) has been a partner in a partnership or an officer, director or principal stockholder of a corporation whose license under this or any other ordinance regulating adult uses has previously been suspended or revoked, including the name and location of the establishment for which the license was suspended or revoked, as well as the date of the suspension or revocation.
(5)
Whether the applicant or any other individuals listed pursuant to § 147-13B(1) holds or is a partner or stockholder in a corporation which holds any other licenses under this chapter and, if so, the names and locations of such other licensed establishments.
(6)
The general nature of the type of adult use for which the applicant is seeking a license, including a statement concerning the degree to which the anticipated activities at the adult use meet the definitions of the enumerated adult use classifications listed in § 147-12 of this chapter. Such a characterization shall serve as an initial basis for the permitted activities allowed under the license issued.
(7)
The location of the proposed establishment, including
a legal description of the property site and a legal street address.
(8)
The names of the employees for the proposed establishment,
if known, or, if presently unknown, a statement to that effect.
(9)
The applicant's mailing address, residential address
and residential telephone number (if any).
(10)
A site plan of the proposed or existing establishment.
A professionally prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each site plan should be oriented
to the north or to some designated street or object and should be drawn to
a designated scale or with marked dimensions sufficient to show the various
internal dimensions of all areas of the interior of the premises to an accuracy
of plus or minus six (6) inches. The site plan shall include, but not be limited
to, the following:
(a)
All property lines, rights-of-way and the location of
buildings, parking areas and spaces, curb cuts and driveways.
(b)
All windows, doors, entrances and exits, fixed structural
features, walls, stages, partitions, projection booths, admission booths,
adult booths, concession booths, stands, food service equipment, counters
and similar structures.
(c)
All proposed improvements or enlargements to be made,
which shall be indicated and calculated in terms of percentage of increase
in floor size.
(d)
A designation of any portion of the premises in which
patrons will not be permitted.
(e)
If a proposed establishment is constructed in a manner
that varies from the site plan submitted, a supplemental site plan showing
the existing facility shall be provided once the certificate of occupancy
or final building permit inspection is completed.
(11)
A recent photograph of the individuals listed pursuant to § 147-13B(1).
(12)
Either the driver's license number or the state or federally issued identification card number of the individuals listed pursuant to § 147-13B(1).
(13)
A valid adult use permit signed by the Director of Department of Community Improvement pursuant to Article VI of this chapter.
(14)
A sworn statement attesting to the accuracy of the information
provided in the application and to the fact that the applicant, as licensee,
will own, possess, operate and exercise control over the proposed or existing
adult use establishment.
A.
Any adult use establishment shall pay to the Department
of Community Improvement and prior to application for a license that fee in
an amount to cover the expenses of the land use review necessary to obtain
an adult use permit pursuant to this chapter. The amount of such fee shall
be established by resolution of the City Commission.[1] Such fee shall be paid only one (1) time for any proposed adult
use location unless the proposal is to expand the dimensions of a permitted
adult use.
B.
Each application for an adult use license shall be accompanied
by a nonrefundable fee in an amount required to offset the cost of processing
the application as set by resolution of the City Commission.
A.
In the event that the Department of Community Improvement
determines or learns at any time that the applicant has not properly completed
the application for a proposed establishment, it shall promptly notify the
applicant of such fact and shall allow the applicant thirty (30) days to properly
complete the application. The time period for granting or denying a license
shall be stayed during the period in which the applicant is allowed an opportunity
to properly complete the application.
B.
Failure to respond to a request for information necessary
to complete the application within thirty (30) days shall result in a denial
of the application on the basis of abandonment. This denial shall be without
prejudice to the applicant's right to reapply.
Upon receipt of an application properly filed with the Department of
Community Improvement and upon payment of the nonrefundable application fee,
the Department of Community Improvement shall immediately stamp the application
as received and shall immediately thereafter send photocopies of the application
to the Chief of Public Safety. The Chief shall promptly arrange for an investigation
of the applicant and of the individuals listed in the application to ascertain
the validity of the information provided as well as other information provided
in the application. At the conclusion of its investigation, the Department
of Public Safety shall indicate, on the photocopy of the application, the
results of its investigation.
A.
Time period for granting or denying.
(1)
The Department of Community Improvement shall grant or
deny an application for a new, renewal or transfer license within thirty (30)
days from the date of its proper filing. Any denial shall state the reasons
for the denial.
(2)
Upon the expiration of the 30th day, the applicant may,
at the applicant's discretion, begin operating the establishment for which
a license is sought without benefit of a license unless and until the Department
of Community Improvement notifies the applicant of a denial of the application
and states the reason(s) for that denial. Failure to timely grant or deny
an application for a license and the provisions of this section allowing operation
without benefit of a license shall not serve as a granting of the license.
(3)
Failure to timely grant or deny an application for a
license shall serve to ripen an appropriate action to compel a decision on
the application. The city will cooperate with the applicant to assure his
entitlement to prompt judicial review of the city's failure to timely grant
or deny the application. All operation of the establishment, under this special
provision, shall conform to the provisions of this chapter during the pendency
of the application review.
B.
Granting of application for license. If there is no basis for denial, pursuant to § 147-17C, the Department of Community Improvement shall grant the application, notify the applicant of the granting and issue the license to the applicant upon payment of the appropriate annual license fee.
C.
Denying of application for license.
(1)
The Department of Community Improvement shall deny the
application for any of the following reasons:
(a)
The application contains material false information or information material to the decision was omitted; failure to list an individual required to be listed pursuant to § 147-13B(1), and whose listing would result in a denial pursuant to Subsection C(1)(b) and (d) below, is presumed to be a material false information for purposes of denial of the application; the certification that the licensee owns, possess, operates and exercises control over the proposed or existing adult use establishment is a material representation for purpose of this section.
(b)
The applicant or any of the other individuals listed pursuant to § 147-13B(1) holds or has held a license under this or any other ordinance regulating adult uses which has been suspended or revoked for reasons which would be sufficient to warrant suspension or revocation under this chapter and from which less than ten (10) years has elapsed since the date of revocation or from which less than two (2) years has elapsed since the date of suspension.
(c)
The granting of the application would violate a statute,
chapter or an order from a court of law.
(d)
An applicant or any of the other individuals listed pursuant to § 147-13B(1) has been convicted of a specified criminal act:
[1]
For which:
[a]
Less than two (2) years has elapsed since the date of
conviction or the date of release from confinement imposed for the conviction,
whichever is the later date, if the conviction is of a misdemeanor offense;
[b]
Less than five (5) years has elapsed since the date of
conviction or the date of release from confinement imposed for the conviction,
whichever is the later date, if the conviction is of a felony offense; or
[c]
Less than five (5) years has elapsed since the date of
the last conviction or the date of release from confinement imposed for the
conviction, whichever is the later date, if the convictions are of two (2)
or more misdemeanor offenses or combination of misdemeanor offenses occurring
within any twenty-four-month period.
[2]
The fact that a conviction is being appealed shall have
no effect on the disqualification of the applicant.
[3]
An applicant who has been convicted of a specified criminal
act may qualify for an adult use license only when the time period required
by Subsection C(1)(d)[1][a] through [c] of this section has elapsed.
(2)
If the Department of Community Improvement denies the
application, it shall notify the applicant of the denial and state the reason(s)
for the denial.
(3)
If a person applies for a license at a particular location
within a period of six (6) months from the date of denial of a previous application
for a license at the location and there has not been an intervening change
in the circumstances material to the decision regarding the former reason(s)
for denial, the application shall not be accepted for consideration.
(4)
The granting of a license does not act as a certification
that the proposed adult use establishment meets all provisions of this chapter
or of any health or land use regulation, code, ordinance or regulation. The
existing adult use establishment and any proposed adult use establishment,
once established, must meet all code provisions required of all regulated
businesses.
A.
Contents. An adult use license shall state on its face
the name of the licensee, the name of the establishment, the street address
of the establishment, the classification(s) of the license, the date of issuance
and the date of expiration.
B.
Term. All licenses issued under this chapter shall be
annual licenses which shall commence running on October 1, on which date they
shall have been paid for, and shall expire on September 30 of the following
year. If a license is issued after October 1 but by March 31 of the following
year, the applicant shall pay the appropriate license fee. If a license is
issued after March 31 but by October 1 of the same year, the applicant shall
pay one-half (1/2) the appropriate license fee.
C.
Renewals.
(1)
Licenses shall be renewed annually. Subject to the requirements
of this chapter, a licensee under this chapter shall be entitled to a renewal
of his annual license from year to year, as a matter of course, by October
1 by presenting the license for the previous year and by paying the appropriate
license fee and updating the information supplied with the latest application
or certifying that the information supplied remains unchanged.
(2)
An application for renewal may be denied if updated information provided in the application indicates that one (1) or more of the individuals required to be listed pursuant to § 147-13B(1) were not listed in the original application and their existence in the original application would have resulted in a denial of the application pursuant to § 147-17C. Removal of that individual(s) from the application for renewal will allow approval of the application for renewal.
(3)
An application for renewal may not be denied where the individuals required to be listed pursuant to § 147-13B(1) were listed in the original application and, subsequent to issuance of the license, were convicted of an offense which would have resulted in a denial of the application pursuant to § 147-17C. Such convictions are to be accommodated through the suspension and revocation procedures of this chapter.
D.
Expiration. A license that is not renewed under this
chapter by October 1 of each year shall expire. An expired license may be
renewed by November 30 of the same year upon presentation of an affidavit
stating that no adult entertainment activity has taken place at the establishment
subsequent to expiration, upon payment of the appropriate license fee and
upon payment of a penalty of ten percent (10%) of the appropriate license
fee for the month of October, or fraction thereof, and an additional penalty
of five percent (5%) of the appropriate license fee for the month of November,
or fraction thereof.
E.
Cancellation. All expired licenses not renewed by November
30 shall be canceled summarily by the Department of Community Improvement.
A.
Levy of license fees. In order to cover the administrative
and enforcement costs associated with this chapter, there are hereby levied
annual licensing regulatory fees under this chapter for an adult entertainment
establishment in amounts set by resolution of the City Commission.[1]
B.
License fees are regulatory in nature. The annual license
fees collected under this chapter are declared to be regulatory fees which
are collected for the purpose of examination and inspection of adult uses
under this chapter and the administration thereof. These regulatory fees are
in addition to and not in lieu of the occupational license taxes, building
permit fees, impact fees, food establishment fees or other fees imposed by
other sections of the City Code.
A.
Records and reports.
(1)
Each licensee shall keep such records and make such reports
as are required under this chapter.
B.
Consent. By holding a license under this chapter, the
licensee shall be deemed to have consented to the provisions of this chapter
and to the exercise by the employees of Department of Community Improvement,
the Sheriff and the Department of Public Safety of their respective responsibilities
under this chapter.
A.
Requirements for transfer. A licensee shall not transfer
his license to another business entity or person and thereby surrender ownership,
possession, control and operation of the licensed establishment to such other
business entity or person unless and until such other business entity or person
satisfies the following requirements:
(1)
Such other business entity or person obtains an amendment to the license from the Department of Community Improvement which indicates the new licensee, which amendment may be obtained only upon completion and proper filing of an application with the Department of Community Improvement setting forth the information called for under § 147-13B, with respect to the new applicant, and that application has been granted by the Department of Community Improvement pursuant to § 147-17B; and
B.
Effect of suspension or revocation procedures. No license may be transferred pursuant to this § 147-21 when the Department of Community Improvement has notified the licensee that suspension or revocation proceedings have been or will be brought against the licensee.
C.
No transfer to different location. A licensee shall not
transfer his license to another location.
D.
Attempted improper transfer void; license abandoned. Any attempted transfer of a license either directly or indirectly in violation of this § 147-21 is hereby declared void, and the license shall be deemed abandoned and shall automatically terminate. The Department of Community Improvement shall give notice of the cancellation of the license.
No licensee may change the name of an adult use establishment unless
and until he satisfies each of the following requirements:
A.
Violation of general provisions.
(1)
In the event that a department learns or finds, upon sufficient cause, that a licensed adult use establishment is operating contrary to the respective general requirement of § 147-29E, F and G, or the applicable special requirement of § 147-30A(1)(a), (b), (c) and (d), § 147-30A(5), § 147-30B, C and D and § 147-31, it shall notify the Department of Community Improvement, which shall promptly notify the licensee of the violation and shall, consistent with Chapter 162, Florida Statutes, allow the licensee a thirty-day period in which to correct the violation. Filing of an application to the Planning and Zoning Board for a variance from § 147-30 shall toll the running of the time period, and the Planning and Zoning Board may, in its conditions for any variance, provide for a specified period of time for correction of the violation, consistent with the variance.
(2)
If the licensee fails to so correct the violation before the expiration of the time period provided for in Subsection A(1) above, the Department shall notify the Department of Community Improvement, which shall forthwith suspend the license and shall notify the licensee of the suspension.
(3)
The suspension shall remain in effect until the Department
notifies the Department of Community Improvement in writing that the violation
of the provision in question has been corrected. The Department of Community
Improvement or another department, at its request, shall respond to a request
for inspection within twenty-four (24) hours of receipt of such a request
and shall, within twelve (12) hours of inspection, notify the licensee that
the violation has or has not been corrected.
(4)
Within twenty-four (24) hours of receipt of notice that
the violation(s) responsible for any suspension has (have) been corrected,
the Department of Community Improvement shall notify the licensee that the
suspension is lifted.
(5)
During the suspension of its license, an adult use establishment
may not operate as an adult use or, pursuant to either applicable codes, chapters,
statutes or court orders, where applicable, may not be open for business.
B.
Illegal transfer. In the event that the Department of Community Improvement learns or finds, upon sufficient cause, that a licensee is engaged in a license transfer contrary to § 147-21, it shall forthwith suspend the license and notify the licensee of the suspension. The suspension shall remain in effect until the Department of Community Improvement is satisfied that the requirements of § 147-21 have been met.
C.
Convictions for violations of Article VII of this chapter.
(1)
In the event that three (3) or more violations of a specified criminal act or violations of Article VII of this chapter occur at an adult use establishment within a two-year period and convictions result from at least three (3) of the violations of either the licensee, the licensee's operator or employee, or of any of the other individuals listed pursuant to § 147-13B(1), the Department of Community Improvement shall, upon the date of the third conviction, suspend the license and notify the licensee of the suspension. The suspension shall remain in effect for a period of thirty (30) days. For purposes of this § 147-23 only, in the event that a single occurrence of enforcement results in more than one (1) conviction, the total number of convictions shall be combined into a single violation. Single occurrences of enforcement are enforcement actions occurring at the same location and less than four (4) hours apart. Enforcement actions occurring more than four (4) hours apart or at different locations resulting in convictions are separate violations for purposes of this subsection.
(2)
In the event that one (1) or more violations of a specified criminal act or a violation of Article VII of this chapter occurs at the adult use establishment within a period of two (2) years and thirty (30) days from the date of the violation from which the conviction resulted for which the license was suspended for thirty (30) days under § 147-23C(1) and a conviction results from one (1) or more of the violations of either the licensee, the licensee's operator or employee, or of any of the other individuals listed pursuant to § 147-13B(1), the Department of Community Improvement shall, upon the date of the first conviction, suspend the license again and notify the licensee of the suspension. The suspension shall remain in effect for a period of ninety (90) days.
(3)
In the event that one (1) or more violations of a specified criminal act or violations of Article VII of this chapter occur within a period of two (2) years and ninety (90) days from the date of the violation from which the conviction resulted for which the license was suspended for (90) days under § 147-23C(2) and a conviction results from one (1) or more of the violations of either the licensee, the licensee's operator or employee, or of any of the other individuals listed pursuant to § 147-13B(1), the Department of Community Improvement shall, upon the date of the first conviction, suspend the license again and notify the licensee of the suspension. The suspension shall remain in effect for a period of one hundred eighty (180) days.
(4)
The transfer or renewal of a license pursuant to this chapter shall not defeat the terms of § 147-23C(1) through (3).
D.
Effective date of suspension. All periods of suspension
shall begin five (5) days after the date the Department of Community Improvement
mails the notice of suspension to the licensee or on the date the licensee
delivers his license to the Department of Community Improvement, whichever
happens first.
A.
False information. In the event that the Department of Community Improvement learns or finds upon sufficient cause that a license was granted based upon material false information, misrepresentation of material fact or mistake of fact or law, it shall notify the licensee and shall provide no more than thirty (30) days during which the licensee may correct or explain the reason for the false information. If the licensee does not have adequate justification for the existence of false information or if the licensee cannot correct the application to conform to the requirements of this chapter, the licensee will be in violation of this chapter. A code enforcement officer or a law enforcement officer may issue a citation for violation of this section of this chapter. The licensee will be subject to all proceedings, fines and penalties provided in this chapter. In the event that the licensee is convicted or found guilty of a violation of this provision, he shall also be subject to cancellation of the license as provided in § 147-25C and D of this chapter. Failure to list an individual required to be listed pursuant to § 147-13B(1), and whose listing would result in a denial pursuant to § 147-17C, is presumed to be a material false information for purposes of cancellation of the permit; the certification that the licensee owns, possesses, operates and exercises control over the proposed or existing adult use establishment is a material representation for purposes of this section.
A.
If the licensee, the licensee's operator or employee, or any other individual listed pursuant to § 147-13B(1), is convicted for one (1) or more specified criminal acts or for a violation of Article VII of this chapter and the conviction(s) was (were) for activities that occurred at an adult use establishment which has had a license suspended for a period of one hundred eighty (180) days pursuant to § 147-23C(3), and the conviction(s) occurs within a period of two and one-half (2 1/2) years after the license was suspended for one hundred eighty (180) days pursuant to § 147-23C(3), the licensee will be in violation of this provision and will be subject to revocation of his/her license.
B.
The time frame of two and one-half (2 1/2) years during which the licensee is subject to revocation proceedings under § 147-25A shall begin to run from the first day upon which the one-hundred-eighty-day suspension of the license takes effect.
C.
Upon discovery of a violation as defined in § 147-25A, the Department of Community Improvement shall notify the licensee of its intent to revoke the license. The licensee shall have thirty (30) days upon which to request a hearing before the City Commission. Such hearing shall provide for adequate due process as constitutionally required in an quasi-judicial proceeding. The City Commission may revoke the license if it finds that the licensee is in violation of this provision.
D.
In the event that the licensee fails to make a timely
request for a hearing, the Department of Community Improvement shall permanently
revoke the license and notify the licensee of the revocation and the reasons
therefor.
If a license is revoked, the licensee shall not be allowed to obtain
another adult use license for a period of ten (10) years.
The revocation shall take effect five (5) days after the date the Department
of Community Improvement mails the notice of revocation to the licensee or
on the date the licensee delivers his license to the Department of Community
Improvement, whichever happens first.
