CHAPTER 3
ADULT ENTERTAINMENT BUSINESSES
SECTION:
4-3-2: Licenses Required; Fees
4-3-3: Due Date For License Fees
4-3-4: Renewal Of License; Late Penalty
4-3-6: Manager Required On Premises
4-3-8: Standards Of Employee Conduct And Operation
4-3-9: List Of Entertainments, Fees
4-3-10: Physical Layout Of Premises; Sight Obstructions
4-3-11: Notice Of Regulations To Customers
4-3-13: Activities Not Prohibited
4-3-14: Panorams Or Peepshows, Requirements
4-3-15: Adult Entertainment Establishments; Requirements
4-3-16: License Suspension Or Revocation
4-3-17: Appeal And Hearing Provisions
4-3-18: Penalties; Additional Enforcement
4-3-1 DEFINITIONS:
As used in this chapter, the following words and phrases shall have the following meanings unless the context clearly requires otherwise:
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ADULT ENTERTAINMENT: |
A. Any exhibition, performance or dance of any type conducted in a premises where such exhibition, performance or dance involves a person who is unclothed or in such costume, attire or clothing as 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 wearing any device or covering exposed to view which simulates the appearance of 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. |
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B. 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": |
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1. Human genitals in a state of sexual stimulation or arousal; |
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2. Acts of human masturbation, sexual intercourse or sodomy; or |
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3. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast. |
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C. Any exhibition, performance or dance intended to sexually stimulate any patron and conducted in a premises where such exhibition, performance or dance is performed for, arranged with, or engaged in with fewer than all patrons on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance. For purposes of example and not limitation, such exhibitions, performances or dances are commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or straddle dancing. |
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D. Any "panoram premises", which shall mean a business or commercial establishment where on the premises or a portion of the premises, for any form of consideration, one or more still or motion picture projectors, slide projectors, computer generated or enhanced pornography, panoram, peepshow, or similar machines or other image producing machines, are used to show films, motion pictures, videocassettes, slides or other photographic reproductions for individual viewing by the public on the premises of the business, with the viewed materials being characterized by the depiction or description of nudity or of "specified sexual activities" as defined at subsection B of this definition, and/or where on the premises there is individual viewing by use of a panoram device of live adult entertainment. |
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E. Any "adult motion picture theater", which shall mean a motion picture theater business or commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides or similar photographic reproductions characterized by the depiction or description of nudity or of "specified sexual activities" as defined at subsection B of this definition, are regularly shown. |
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F. This definition of "adult entertainment" is intended to provide regulatory detail to the general zoning definition. |
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ADULT ENTERTAINMENT ESTABLISHMENT: |
Any commercial premises to which any patron is invited or admitted and where "adult entertainment" as defined in this section is provided on a regular basis and as a substantial part of the premises activity. It shall be a rebuttable presumption that twenty percent (20%) of a business’ stock in trade or revenues is considered substantial. |
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APPLICANT: |
The individual or entity seeking an adult entertainment license in the city. |
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APPLICANT CONTROL PERSONS: |
All partners, corporate officers and directors and any other individuals in the applicant’s business organization who hold a significant interest in the adult entertainment establishment, based on responsibility for management of the adult entertainment business. |
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EMPLOYEE: |
Any and all persons, including managers, entertainers, and independent contractors who work in or at or render any services directly related to the operation of any adult entertainment establishment. |
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ENTERTAINER: |
Any person who provides live adult entertainment whether or not a fee is charged or accepted for such entertainment. |
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MANAGER: |
Any person who manages, directs, administers, or is in charge of, the affairs and/or the conduct of any portion of any activity involving adult entertainment occurring at any adult entertainment establishment. |
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OPERATOR: |
Any person operating, conducting or maintaining an adult entertainment establishment. |
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PANORAM OR PEEPSHOW: |
Any device which, upon insertion of a coin or by any other means of payment, including membership fee or other charge, exhibits or displays a picture or view by film, video or by any other means, including observation of live performances. This definition is intended to provide regulatory details to the general zoning definition. |
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PANORAM PREMISES: |
Any premises or portion of a premises on which a panoram is located and which is open to the public, including through membership. This definition is intended to provide regulatory detail to the general zoning definition. |
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PERSON: |
Any individual, partnership, corporation, trust, incorporated or unincorporated association, marital community, joint venture, governmental entity, or other entity or group of persons, however organized. |
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SEXUAL CONDUCT: |
Acts of: |
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A. Sexual intercourse within its ordinary meaning; or |
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B. Any contact between persons involving the sex organs of one person and the mouth or anus of another; or |
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C. Masturbation, manual or instrumental, of oneself or of one person by another; or |
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D. Touching of the sex organs or anus, of oneself or of one person by another. (Ord. 667, 2-9-2004) |
4-3-2 LICENSES REQUIRED; FEES:
A. Establishments:
1. Adult entertainment establishments shall not be operated or maintained in the city unless the owner or operator has first obtained a license from the city clerk-treasurer, as set forth in this chapter. It is unlawful for any entertainer, employee or operator to knowingly work in or about, or to knowingly perform any service directly related to the operation of any unlicensed adult entertainment establishment.
2. The fee for an adult entertainment establishment license in the city as required in this section is five hundred dollars ($500.00) per year.
B. Managers Or Entertainers:
1. No person shall work as a manager or entertainer at an adult entertainment establishment without having first obtained a manager’s or an entertainer’s license from the city clerk-treasurer.
2. The annual fee for such a license shall be seventy five dollars ($75.00). (Ord. 667, 2-9-2004)
4-3-3 DUE DATE FOR LICENSE FEES:
A. Establishment: The initial license fee required by subsection 4-3-2A of this chapter is due and payable to the city clerk-treasurer at least two (2) weeks before the opening of the adult entertainment establishment.
B. Entertainers And Employees: The license fees required by section 4-3-2 of this chapter are due and payable to the city clerk-treasurer before the beginning of such entertainment or beginning employment.
C. Term Of License: Every license issued or renewed pursuant to this chapter shall expire on December 31 of each year.
D. Payment Of Fee; Annual Renewal: The entire annual license fee shall be paid for the applicable calendar year regardless of when the application for license is made, and shall not be prorated for any part of the year, except that if the original application for license is made subsequent to June 30, the license fee for the remainder of that year shall be one-half (1/2) of the annual license fee. Annual license renewals shall be required to be obtained and paid in full by January 31 of each respective calendar year. (Ord. 667, 2-9-2004)
4-3-4 RENEWAL OF LICENSE; LATE PENALTY:
A late penalty shall be charged on all applications for renewal of a license received later than seven (7) days after the expiration date of such license as set forth in the respective resolution or ordinance establishing the expiration date of such license. The amount of such penalty is fixed as follows:
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Days Past Due |
Additional Percentage Of License Fees |
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8 – 30 |
25 |
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31 – 60 |
50 |
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61 and over |
100 |
(Ord. 667, 2-9-2004)
4-3-5 LICENSE APPLICATIONS:
A. Adult Entertainment Establishment License:
1. Required Information: All applications for an adult entertainment establishment license shall be submitted to the city clerk-treasurer in the name of the person or entity proposing to conduct the adult entertainment establishment on the business premises and shall be signed by such person or his or her agent and notarized or 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:
a. The name of the applicant, location and doing business as name of the proposed adult entertainment establishment, 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.
b. For the applicant and for each applicant control person, 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.
c. If the applicant is 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. (Ord. 667, 2-9-2004)
d. For the applicant and each applicant control person, list any other licenses currently held for similar adult entertainment or sexually oriented businesses, including motion picture theaters and panorams, whether from the city or another city, county or state, and if so, the names and addresses of each other licensed business. (Ord. 705, 5-9-2005)
e. For the applicant and each applicant control person, list prior licenses held for similar adult entertainment or other sexually oriented businesses, whether from the city or from another city, county or state, providing names, addresses and dates of operation for such businesses, and whether any business license or adult entertainment license has been revoked or suspended, and the reason therefor.
f. For the applicant and all applicant control persons, any and all criminal convictions or forfeitures within five (5) 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, name and location of court and disposition.
g. For the applicant and all applicant control persons, a description of business, occupation or employment history for the three (3) years immediately preceding the date of the application.
h. Authorization for the city, its agents and employees to seek information to confirm any statements set forth in the application.
i. Two (2) two inch by two inch (2" x 2") photographs of the applicant and applicant control persons, taken within six (6) months of the date of application showing only the full face.
j. For the applicant or each applicant control person, a complete set of fingerprints prepared at the Pierce County department of public safety or on forms prescribed by the department.
k. A scale drawing or diagram showing the configuration of the premises for the proposed adult entertainment establishment, 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 entertainment establishment shall include building plans which demonstrate conformance with this chapter.
l. The application must demonstrate compliance with the provisions of the city’s zoning code concerning allowable locations for adult entertainment establishments.
2. Application Deemed Complete: An application shall be deemed complete upon the applicant’s provision of all information requested above, including identification of "none" where that is the correct response, and the applicant’s verification that the application is complete. The city clerk-treasurer may request other information or clarification in addition to that provided in a complete application where necessary to determine compliance with this chapter.
3. Application Fee: A nonrefundable application fee must be paid at the time of filing an application in order to defray the costs of processing the application.
4. Each applicant shall verify, under penalty of perjury, that the information contained in the application is true.
5. If any person or entity acquires, subsequent to the issuance of an adult entertainment establishment 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-treasurer no later than twenty one (21) days following such acquisition. The notice to the city clerk-treasurer shall include the same information required for an initial adult entertainment establishment license application.
6. The adult entertainment establishment 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 establishment. The license shall be posted in a conspicuous place at or near the entrance to the adult entertainment establishment so that it can be easily read at any time the business is open.
7. No person granted an adult entertainment establishment license pursuant to this chapter shall operate the establishment under a name not specified on the license, nor shall any person operate the establishment at any location not specified on the license.
8. Upon receipt of the complete application and fee, the city clerk-treasurer shall provide copies to the police, fire and community development departments for their investigation and review to determine compliance of the proposed adult entertainment establishment with the laws and regulations which each department administers. Each department shall, within twenty five (25) days of the date of such application, inspect the application and premises and shall make a written report to the city clerk-treasurer 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 entertainment establishment license approved prior to premises construction shall contain a condition that the premises may not open for business until the premises has 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 entertainment establishment 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.
9. An adult entertainment establishment license shall be issued by the city clerk-treasurer within thirty (30) days of the date of filing a complete license application and fee, unless the city clerk-treasurer 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 city clerk-treasurer shall notify the applicant within five (5) working days of application submittal if application is incomplete, and shall grant an applicant’s request for a reasonable extension of time in which to provide all information required for a complete license application. If the city clerk-treasurer finds that the applicant has failed to meet any of the requirements for issuance of an adult entertainment establishment license, the city clerk-treasurer shall deny the application in writing and shall cite the specific reasons therefor, including applicable law. If the city clerk-treasurer fails to issue or deny the license within thirty (30) days of the date of filing of a complete application and fee, the applicant shall be permitted, subject to all other applicable laws, to operate the business for which the license was sought until notification by the city clerk-treasurer that the license has been denied, but in no event may the city clerk-treasurer extend the application review time for more than an additional twenty (20) days.
B. Application For Manager Or Entertainer License:
1. Required Information: No person shall work as a manager, assistant manager or entertainer at an adult entertainment establishment without an adult entertainment manager or entertainer license from the city. 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. All applications shall be submitted on a form supplied by the city, which shall require the following information:
a. The applicant’s name, home address, home telephone number, date and place of birth, fingerprints taken by Pierce County department of public safety at its headquarters or any of its precincts, social security number, and any stage names or nicknames used in entertaining.
b. The name and address of each business at which the applicant intends to work.
c. Documentation that the applicant has attained the age of eighteen (18) years. Any two (2) of the following shall be accepted as documentation of age:
(1) A motor vehicle operator’s license issued by any state bearing the applicant’s photograph and date of birth;
(2) A state issued identification card bearing the applicant’s photograph and date of birth;
(3) An official passport issued by the United States of America;
(4) An immigration card issued by the United States of America; or
(5) Any other identification that the city determines to be acceptable.
d. A complete statement of all convictions of the applicant for any misdemeanor or felony violations in this or any other city, county, or state within five (5) years immediately preceding the date of the application, except parking violations or minor traffic infractions.
e. A description of the applicant’s principal activities or services to be rendered.
f. Two (2) 2-inch by 2-inch photographs of applicant, taken within six (6) months of the date of application showing only the full face.
g. Authorization for the city, its agents and employees to investigate and confirm any statements set forth in the application.
2. The city clerk-treasurer may request additional information or clarification when necessary to determine compliance with this chapter.
3. A manager’s or an entertainer’s license shall be issued by the city clerk-treasurer within fourteen (14) days from the date the complete application and fee are received unless the city clerk-treasurer determines that the applicant has failed to provide any information required to be supplied according to this chapter, has made any false, misleading or fraudulent statement of material fact on the application, or has failed to meet any of the requirements for issuance of a license under this chapter. If the city clerk-treasurer determines that the applicant has failed to qualify for the license applied for, the city clerk-treasurer shall deny the application in writing and shall cite the specific reasons therefor, including applicable laws. If the city clerk-treasurer has failed to approve or deny an application for a manager’s license within fourteen (14) days of filing of a complete application, the applicant may, subject to all other applicable laws, commence work as a manager in a duly licensed adult entertainment establishment until notified by the city clerk-treasurer that the license has been denied, but in no event may the city clerk-treasurer extend the application review time for more than an additional twenty (20) days.
4. Every adult entertainer shall provide his or her license to the adult entertainment establishment manager on duty on the premises prior to his or her performance. The manager shall retain the licenses of the adult entertainers readily available for inspection by the city at any time during business hours of the adult entertainment establishment.
C. Temporary Entertainer License: An applicant for an adult entertainer’s license shall be issued a temporary license upon receipt of a complete license application and fee. Said temporary license will automatically expire on the fourteenth day following the filing of the complete application and fee, unless the city clerk-treasurer has failed to approve or deny the license application, in which case the temporary license shall be valid until the city clerk-treasurer approves or denies the application, or until the final determination of any appeal from a denial of the application. In no event may the city clerk-treasurer extend the application review time for more than an additional twenty (20) days. (Ord. 667, 2-9-2004)
4-3-6 MANAGER REQUIRED ON PREMISES:
A licensed manager shall be on the premises of an adult entertainment establishment at all times that adult entertainment is being provided. (Ord. 667, 2-9-2004)
4-3-7 EXCEPTION FROM CHAPTER:
This chapter does not apply to taverns and premises maintaining liquor licenses and which are subject to the rules and regulations of the Washington state liquor control board. (Ord. 667, 2-9-2004)
4-3-8 STANDARDS OF EMPLOYEE CONDUCT AND OPERATION:
The following standards of conduct must be adhered to by employees of any adult entertainment establishment:
A. No employee or entertainer shall be unclothed or in such less than opaque and complete 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 region, anus, buttocks, vulva or genitals, except upon a stage at least eighteen inches (18") above the immediate floor level and removed at least eight feet (8') from the nearest patron.
B. No employee or entertainer mingling with patrons shall be unclothed or in less than opaque and complete attire, costume or clothing as described in subsection A of this section, nor shall any male employee or entertainer at any time appear with his genitals in a discernibly turgid state, even if completely and opaquely covered, or wear or use any device or covering which simulates the same.
C. No employee or entertainer mingling with patrons shall wear or use any device or covering exposed to view which simulates the female breast below the top of the areola, vulva, genitals, anus or buttocks.
D. No employee or entertainer shall caress, fondle or erotically touch any patron. No employer or entertainer shall encourage or permit any patron to caress, fondle or erotically touch any employee or entertainer. No employee or entertainer shall sit on a patron’s lap or separate a patron’s legs.
E. 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 Revised Code of Washington chapter 7.48A, the Washington moral nuisances statute.
F. No employee or entertainer mingling with patrons shall conduct any dance, performance or exhibition in or about the nonstage area of the adult entertainment establishment unless that dance, performance or exhibition is performed at a torso-to-torso distance of no less than four feet (4') from the patron or patrons for whom dance, performance or exhibition is performed.
G. No tip or gratuity offered to or accepted by an adult 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 patron. 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 entertainment establishment or provided through a manager on duty on the premises. Any gratuity or tip offered to any adult entertainer conducting any performance, dance or exhibition in or about the nonstage area of the adult entertainment establishment 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 adult entertainer. (Ord. 667, 2-9-2004)
4-3-9 LIST OF ENTERTAINMENTS, FEES:
There shall be posted and conspicuously displayed in the common areas of each place offering adult entertainment a list of any and all entertainment provided on the premises. Such list shall further indicate the specific fee or charge in dollar amounts for each entertainment listed. (Ord. 667, 2-9-2004)
4-3-10 PHYSICAL LAYOUT OF PREMISES; SIGHT OBSTRUCTIONS:
Every place offering adult entertainment shall be physically arranged in such a manner that:
A. Performance Area: The performance area where adult entertainment, as described in section 4-3-1 of this chapter, the definition of "adult entertainment", subsections A, B and C; and subsection 4-3-8A of this chapter, is provided, shall be a stage or platform at least eighteen inches (18") in elevation above the level of the patron seating areas, and shall be separated by a distance of at least eight feet (8') from all areas of the premises to which patrons have access. A continuous railing three (3) to five feet (5') in height above the floor and located at least eight feet (8') from all points of the performance area shall separate the performance area and the patron seating areas. The stage and the entire interior portion of cubicles, rooms or stalls wherein adult entertainment is provided must be visible from the common areas of the premises and at least one manager’s station. Visibility shall not be blocked or obstructed by doors, curtains, drapes or any other obstruction whatsoever.
B. Limited Visibility: No activity or entertainment occurring on the premises shall be visible at any time from any other public place. (Ord. 667, 2-9-2004)
4-3-11 NOTICE OF REGULATIONS TO CUSTOMERS:
A sign shall be conspicuously displayed in a common area of the premises which shall read as follows:
This adult entertainment establishment is regulated by the city. Entertainers are:
A. NOT PERMITTED TO ENGAGE IN ANY TYPE OF SEXUAL CONDUCT.
B. NOT PERMITTED TO APPEAR SEMINUDE OR NUDE, EXCEPT ON STAGE.
C. NOT PERMITTED TO ACCEPT TIPS OR GRATUITIES IN ADVANCE OF THEIR PERFORMANCE.
D. NOT PERMITTED TO ACCEPT TIPS OR GRATUITIES DIRECTLY FROM PATRONS WHILE PERFORMING UPON ANY STAGE AREA.
(Ord. 667, 2-9-2004)
4-3-12 BUSINESS HOURS:
No adult entertainment shall be conducted between the hours of two o’clock (2:00) A.M. and ten o’clock (10:00) A.M. (Ord. 667, 2-9-2004)
4-3-13 ACTIVITIES NOT PROHIBITED:
A. Activities Allowed: This chapter shall not be construed to prohibit:
1. Plays, operas, musicals or other dramatic works which are not obscene;
2. Classes, seminars and lectures held for serious scientific or educational purposes; or
3. Exhibitions or dances which are not obscene.
B. Factors For Judging As Obscene: 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.
2. Whether the activity depicts or describes in a patently offensive way, as measured against community standards, sexual conduct as described in Revised Code of Washington 7.48A.010(2)(b).
3. Whether the activity taken as a whole lacks serious literary, artistic, political or scientific value. (Ord. 667, 2-9-2004)
4-3-14 PANORAMS OR PEEPSHOWS, REQUIREMENTS:
The following additional requirements must be adhered to at any panoram or peepshow:
A. The interior of every panoram station shall be visible from a continuous main aisle and shall not be obscured by any curtain, door, wall or other enclosure. (Ord. 667, 2-9-2004)
B. The licensee shall not permit any doors to public areas on the premises to be locked during business hours in compliance with the applicable provisions of the international building code and international fire code.
C. The licensee shall maintain illumination generally distributed in all parts of the premises available for use by the public, in compliance with the applicable provisions of the international building code and international fire code at all times when the premises are open or when any member of the public is permitted to enter and remain therein. (Ord. 705, 5-9-2005)
D. The licensee shall not permit more than one person to occupy a panoram station at any time and public notices to this effect shall at all times be conspicuously posted and maintained on the panoram premises.
E. The panoram stations on any panoram premises shall be separated by partitions constructed of wood or other solid and opaque material. No openings in such partitions for ventilation or any other purposes shall extend higher than twelve inches (12") from the floor or lower than eighty four inches (84") from the floor.
F. The licensee shall not permit any doors to areas on the premises which are available for use by persons other than the licensee or employees of the licensee to be locked during business hours.
G. The licensee shall maintain illumination equally distributed in all parts of the premises available for use by the public at all times when the premises are open or when any member of the public is permitted to enter and remain therein.
H. The entire floor area of the panoram booth or stall must be level with the continuous main aisle. No steps, ramps or risers are allowed in any such booth or stall.
I. The licensee shall permanently post and maintain on the interior and exterior of each booth or stall on the panoram premises a sign with one inch (1") lettering on a contrasting background stating:
Occupancy of this booth is at all times limited to only one person. Violators are subject to criminal prosecution under subsection 4-3-18A of the city code.
J. The licensee shall not operate or maintain any warning system or device, of any nature or kind, for the purpose of warning customers or patrons or any other persons occupying panoram booths or stalls located on the licensee’s premises that police officers or city health, fire, licensing or building inspectors are approaching or have entered the licensee’s premises. (Ord. 667, 2-9-2004)
4-3-15 ADULT ENTERTAINMENT ESTABLISHMENTS, REQUIREMENTS:
At any adult entertainment establishment, the following are required:
A. Admission must be restricted to persons of the age of eighteen (18) years or more.
B. No adult entertainment shall be visible outside of the adult entertainment establishment, nor any photograph, drawing, sketch or other pictorial or graphic representation which includes lewd matter as defined in Revised Code of Washington chapter 7.48A or display of sexually explicit material in violation of Revised Code of Washington 9.68.130.
C. Sufficient lighting shall be provided in and equally distributed in and about the parts of the premises which are open to patrons so that all objects are plainly visible at all times, and so that on any part of the premises which is open to patrons, a program, menu or list printed in 8-point type will be readable by the human eye with 20/20 vision from two feet (2') away. This section shall not apply to the theater section of an adult motion picture theater during the showing of any movie, film or material. (Ord. 667, 2-9-2004)
4-3-16 LICENSE SUSPENSION OR REVOCATION:
A. Preemption Of Certain Provisions: For adult entertainment businesses, this section replaces or preempts chapter 1 of this title, as amended, and where there is a conflict, this section shall prevail; provided, however, that the licensee shall be subject to the business and occupation tax provisions of chapter 1 of this title, as amended.
B. Reasons For Suspension Or Revocation: The city clerk-treasurer may, at any time upon the recommendation of the chief of police and as provided below, suspend or revoke under this chapter:
1. Where such license was procured by fraud or false representation of fact; or
2. For the violation of, or failure to comply with, the provisions of this chapter or any other similar local or state law by the licensee or by any of its servants, agents or employees when the licensee knew or should have known of the violations committed by its servants, agents or employees; or
3. For the conviction of the licensee of any crime or offense involving prostitution, promoting prostitution, or transactions involving "controlled substances" (as that term is defined in Revised Code of Washington chapter 69.50), committed on the premises, or the conviction of any of the licensee’s servants, agents or employees of any crime or offense involving prostitution, promoting prostitution, or transactions involving "controlled substances" (as that term is defined in Revised Code of Washington chapter 69.50) committed on the licensed premises when the licensee knew or should have known of the violations committed by its servants, agents or employees.
C. Fraud, Misrepresentation Or Other Violations: A license procured by fraud or misrepresentation shall be revoked. Where other violations of this chapter or other applicable ordinances, statutes or regulations are found, the license shall be suspended for a period of thirty (30) days upon the first such violation, ninety (90) days upon the second violation within a twenty four (24) month period, and revoked for third and subsequent violations within a twenty four (24) month period, not including periods of suspension.
D. Notice To Licensee: The city clerk-treasurer shall provide at least ten (10) working days’ prior written notice to the licensee of the decision to suspend or revoke the license. Such notice shall inform the licensee of the right to appeal the decision to the hearing examiner and shall state the effective date of such revocation or suspension and the grounds for revocation or suspension.
E. Contents Of Notice; Request For Hearing, Fee:
1. Notification shall be by personal service or registered or certified mail, return receipt requested, of the decision. Notice mailed to the address on file shall be deemed received three (3) days after mailing. The notice shall specify the grounds for the suspension or revocation.
2. The suspension or revocation shall become effective ten (10) working days from the date the notice is delivered or deemed received unless the person affected thereby files a written request with the city clerk-treasurer, accompanied by a check in the sum of fifty dollars ($50.00), for a hearing before the hearing examiner within such ten (10) day period.
3. The hearing examiner shall render his decision within fourteen (14) calendar days following the close of the appeal hearing.
4. Any person aggrieved by the decision of the hearing examiner shall have the right to appeal the decision to the superior court within fourteen (14) calendar days of the hearing examiner’s final decision.
5. The decision of the city clerk-treasurer shall be stayed during the pendency of any administrative and judicial appeals, except as provided in subsection F of this section.
F. Dangerous Conditions; Immediate Suspension:
1. Where the city building official, fire marshal, police chief or the Pierce County health department finds that any condition exists upon the premises of an adult entertainment establishment which constitutes a threat of immediate serious injury or damage to persons or property, said official may immediately suspend any license issued under this chapter pending a hearing in accordance with subsection D of this section.
2. The official shall issue notice setting forth the basis for the action and the facts that constitute a threat of immediate serious injury or damage to persons or property, and informing the licensee of the right to appeal the suspension to the hearing examiner or other designated hearing body under the same appeal provisions set forth in subsection D of this section; provided, however, that a suspension based on threat of immediate serious injury or damage shall not be stayed during the pendency of the appeal. (Ord. 667, 2-9-2004)
4-3-17 APPEAL AND HEARING PROVISIONS:
A. Notice Of Appeal: Any person falling under the provisions of this chapter may appeal to the hearing examiner from any notice of suspension, denial or revocation or civil penalty assessment by filing with the city clerk-treasurer within ten (10) working days from the date the notice is delivered or deemed received, a written appeal containing:
1. A heading in the words: "Before the Hearing Examiner for the City of Roy";
2. A caption reading: "Appeal of ________" giving the name of the appellant;
3. A brief statement setting forth the legal interest of the appellant;
4. A brief statement in concise language of the specific order or action protested, together with any material facts claimed to support the contentions of the appellant;
5. A brief statement in concise language of the relief sought, and the reasons why it is claimed the protested order or action should be reversed, modified or otherwise set aside;
6. The signature of the party named as appellant, and appellant’s official mailing address; and
7. The verification, by declaration under penalty of perjury, of the appellant as to the truth of the matters stated in the appeal.
B. Date, Time, Place For Hearing: As soon as practicable after receiving the written appeal, the hearing examiner shall fix a date, time and place for the hearing of the appeal. Such date shall be not less than ten (10) working days nor more than thirty (30) days from the date the appeal was filed with the city clerk-treasurer, unless the parties agree to an extension of time. Written notice of the time and place of the hearing shall be given at least ten (10) working days prior to the date of the hearing to each appellant by the hearing examiner’s office either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at his or her address shown on the appeal.
C. Scope Of Appeal And Standard Of Review:
1. Only those matters or issues specifically raised by the appellant in the written notice of appeal shall be considered in the hearing of the appeal.
2. The hearing examiner shall have the authority to determine the procedure and standard of review for the appeal hearing and shall be guided, as relevant, but not be bound by, the provisions of the administrative procedure act, Revised Code of Washington chapter 34.05, including sections 34.05.449, 34.05.452, 34.05.455, and 34.05.461.
D. Waiver Of Right To Appeal: Failure of any person to file an appeal in accordance with the provisions of section 4-3-16 of this chapter, and this section, shall constitute a waiver of his or her right to an administrative hearing and adjudication of the notice and order, or any portion thereof.
E. Action After Hearing: Upon completion of the hearing, the hearing examiner shall:
1. Affirm the city clerk-treasurer’s decision; or
2. Reverse or modify the city clerk-treasurer’s decision.
F. Appeal From Hearing Examiner: An appeal from a decision of the hearing examiner shall be to the Pierce County superior court and shall be served and filed within fourteen (14) calendar days of the decision of the hearing examiner. In the event the applicant or license holder does not follow the procedures within the time periods set forth in section 4-3-16 of this chapter, and this section, the action of the hearing examiner shall be final.
G. Stay During Appeal: The decision of the city clerk-treasurer to suspend, revoke or refuse to renew a license under this chapter shall be stayed during administrative and judicial review, but refusal to issue an initial license shall not be stayed. (Ord. 667, 2-9-2004)
4-3-18 PENALTIES; ADDITIONAL ENFORCEMENT:
A. Criminal Or Civil Penalty:
1. Criminal Penalty: Any person violating any of the terms of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to penalty as provided in section 1-4-1 of this code. (Ord. 667, 2-9-2004; amd. 2006 Code)
2. Civil Penalty:
a. In addition to any other penalty provided in this section or by law, any person who violates any provision of any business license ordinance shall be subject to a civil penalty in an amount not to exceed two hundred fifty dollars ($250.00) per violation, to be directly assessed by the city clerk-treasurer.
b. The city clerk-treasurer, in a reasonable manner, may vary the amount of the penalty assessed to consider the appropriateness of the penalty to the size of the business of the violator; the gravity of the violation; the number of past and present violations committed; and the good faith of the violator in attempting to achieve compliance after notification of the violation.
c. All civil penalties assessed will be enforced and collected in accordance with the procedure specified under this chapter.
B. Additional Enforcement: Notwithstanding the existence or use of any other remedy, the city clerk-treasurer may seek legal or equitable relief to enjoin any acts or practices which constitute or will constitute a violation of any provision of this chapter. (Ord. 667, 2-9-2004)