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HomeMy WebLinkAboutOrdinance No. 02-19961 ORDINANCE NO. 0 2 -96 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAPE CANAVERAL, FLORIDA, REPEALING SECTIONS 10 -99, 10 -114, 10 -115, 10 -116, 10 -117, 10 -119, AND 10 -121 OF THE CAPE CANAVERAL CODE OF ORDINANCES IN THEIR ENTIRETY; ADOPTING A NEW SECTION 10 -116 PROVIDING A LICENSING PROCEDURE FOR ADULT ENTERTAINMENT ESTABLISHMENTS; PROVIDING A NEW SECTION 10 -119 PERTAINING TO THE CONTENT, TERM, RENEWAL AND EXPIRATION OF ADULT ENTERTAINMENT LICENSES; PROVIDING A NEW SECTION 10 -121 REQUIRING CERTAIN APPLICATION AND LICENSING FEES FOR ADULT ENTERTAINMENT BUSINESS; AMENDING SECTIONS 10 -100, 10 -122, AND 10 -123 PERTAINING TO ADULT ENTERTAINMENT ESTABLISHMENTS; PROVIDING FOR SEVERABILITY; PROVIDING FOR REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; PROVIDING FOR INCORPORATION INTO THE CODE; PROVIDING FOR AMENDMENTS TO APPENDIX B - SCHEDULE OF FEES; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, this Ordinance is for purposes of promoting the health, safety, morals and welfare of the inhabitants of the City of Cape Canaveral, Brevard County, Florida; and WHEREAS, the City of Cape Canaveral has reviewed the Code of the City of Cape Canaveral and has found said provision to be inadequate for the full and complete regulation of adult entertainment; and WHEREAS, the City of Cape Canaveral may lawfully regulate the licensing activities and appearance of adult entertainment establishments; and WHEREAS, the licensing procedures and requirements, and schedule of fees contained herein for adult entertainment establishments are deemed necessary by the City Council to promote and protect the general health, safety and welfare of the public while preserving the constitutional rights of those engaged in the business of adult entertainment. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Cape 1 1 1 City of Cape Canaveral, Florida Ordinance No. 0 2 -96 Page 2 Canaveral, Brevard County, Florida, as follows: SECTION 1. REPEAL OF CODE SECTIONS. Cape Canaveral Code Sections 10 -99, 10 -114, 10 -115, 10 -116, and 10 -117, attached hereto as Exhibit "A" for notice purposes, are hereby repealed in their entirety. SECTION 2. ADULT ENTERTAINMENT LICENSING PROCEDURE. The Cape Canaveral Code is hereby amended to include the addition of the following new Sections 10 -116, 10 -119, and 10 -121, as follows (underlined type indicates additions): Sec. 10 -116. Licensing procedure. Responsibility. Ultimate responsibility for the administration of this Section is vested in the City Council. The City Manager is responsible for granting, denying, revoking, renewing, suspending, and cancelling adult entertainment licenses for proposed or existing adult entertainment establishments. The City Manager, or his designee, shall be responsible for insuring all proposed establishments and any licensed establishments comply with or are complying with the following requirements: L, Conform to all applicable building statutes, codes, ordinances and regulations, whether federal, state or local: Conform to all applicable fire statutes, codes, ordinances and regulations, whether federal, state or local: al Conform to all applicable health statutes, codes, ordinances and regulations, whether federal, state or local: 4) Conform to all applicable zoning regulations and land use laws, whether state or local. License Required. No adult entertainment establishment shall be permitted to operate without having been first granted an adult entertainment license by the City Manager. Application. Any person desiring to operate an adult entertainment 1 1 1 City of Cape Canaveral, Florida Ordinance No. 02 -96 Page 3 establishment shall file with the City Manager a sworn license application on a standard application form prescribed by the City Manager. The following requirements and conditions shall apply: W Contents of Application. The completed application shall contain the following information and shall be accompanied by the following documents: (A), If the applicant is: La An individual, the individual shall state his legal name and any aliases, address and telephone number, and submit satisfactory proof that he is at least eighteen (18) years of age; or ii A partnership, the partnership shall state its complete name and the names, addresses and telephone numbers of all partners, whether the partnership is general or limited and, if in existence, a copy of the partnership agreement: or (iii) 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 and directors and, if applicable, the name of the registered corporate agent and the address of registered office for service of process: ja If the applicant intends to conduct the establishment under a name other than that of the applicant, the establishment's fictitious name registration pursuant to Section 865.09, Florida Statutes as amended from time to time: (C) Whether the applicant or any of the other individuals listed pursuant to subparagraph (c)(1)(A) has had a previous license under this Article 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, and whether the applicant or any other individual listed pursuant to subparagraph (c)(1)(A) has been a partner in a partnership or an officer or director of a corporation whose license under this Article 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: (D) Whether the applicant or any of the other individuals listed 1 1 1 City of Cape Canaveral, Florida Ordinance No. 0 2 -96 Page 4 pursuant to subparagraph (c)(1)(A) has, within the five (5) 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; (E) Whether the applicant or any other individual listed pursuant to subparagraph (c)(1)(A) holds any other licenses under this Article and, if so, the names and locations of such other licensed establishments; The single classification of license for which the applicant is filing; (G) The location of the proposed establishment, including a legal description of the property site, legal street address, and the zoning designation of the property; (H) The applicant's mailing address, residential address and residential telephone number (if any); f, A site plan drawn to appropriate scale of the proposed establishment, including but not limited to: All property lines, right -of -ways and the location of buildings, parking areas and spaces, curb cuts and driveways; u All windows, doors, entrances and exits, fixed structural features, walls, stages, partitions, projection booths, admission booths, adult booths, concession booths, stands, counters and similar structures; (iii) All proposed improvements or enlargements to be made, which shall be indicated and calculated in terms of percentage of increase in floor size; l A recent photograph of the applicant; and (K), Either the applicant's driver's license number or his state or federally- issued identification card number. (2) Application Fee. Each application shall be accompanied by a nonrefundable fee of four hundred dollars ($400.00). If the application for a license is approved and a license is granted, one -half (1/2) of the fee shall be 1 1 City of Cape Canaveral, Florida Ordinance No. 0 2 -96 Page 5 applied as a credit toward the annual license fee required for the first year pursuant to Section 10 -121 of this Article. DI Incomplete Application. In the event the City Manager determines or learns at any time that the applicant has not properly completed the application for a proposed establishment, he shall promptly notify the applicant of such fact and shall allow the applicant ten (10) days to properly complete the application. (The time period for granting or denying a license under Section 10- 116(d)(1) shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.) L Grant: Denial: Appeal. ill Time Period for Granting or Denying License. The City Manager shall grant or deny an application for a license within ninety (90) days from the date of receipt of a complete application. Upon the expiration of the ninetieth (90) day, the applicant shall be permitted to begin operating the establishment for which a license is sought, unless and until the City Manager notifies the applicant of a denial of the application and states the reason(s) for that denial. al Granting of Application for License. Upon approval by the City Manager. the City Manager 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 provided in Sections 10- 116(c)(2) and 10 -121, with credit as provided in Section 10- 116(c)(2). al Denying of Application for License. (A) The City Manager shall deny the application for any of the following reasons: The application remains incomplete following the notice and corrective period provided for in Section 10- 116(c)(3) hereof; (ii) The application does not conform to the requirements stated in Section 10- 116(a); (iii) The application contains material false information; (iv) The applicant or any of the other individuals listed pursuant to Section 10- 116(c)(1)(A) has a license under this Article that has been 1 City of Cape Canaveral, Florida Ordinance No. 02 -96 Page 6 suspended or revoked; The granting of the application would violate either a statute or ordinance or an order from a court of law that effectively prohibits the applicant from obtaining an adult entertainment establishment license; (vi), The proposed establishment or any previously licensed establishment does not comply with the requirements under this Article including, but not limited to, the requirements of Section 10- 116(a). (B), If the City Manager denies the application, he shall promptly notify the applicant in writing of the denial and state the reason(s) for the denial. (C) If a person applies for a license at a particular location within a period of twelve (12) months from the date of denial of a previous application for a license at the same location and there has not been an intervening change in the circumstances which will probably lead to a different decision regarding the former reason(s) for denial, the application shall be rejected. (D) Appeals are provided for as follows: Denial of a license application by the City Manager shall_ be appealed to the City Council of the City of Cape Canaveral. An appeal shall be filed within thirty (30) days after the applicant receives written notice of denial. The City Council of the City of Cape Canaveral shall render a decision granting or denying the application within thirty (30) days after the appeal has been filed. ii Denial of a license application by the City Council of the City of Cape Canaveral shall be appealed to the circuit court by petition for writ of certiorari or any other appropriate appellate procedure in circuit court. An appeal shall be filed within thirty (30) days after the City Council of the City of Cape Canaveral has rendered its decision on the application. Sec. 10 -119. Contents of License; Term of License; Renewals; Expiration; Cancellation. Lal Contents. An adult entertainment license shall state on its face the name of the licensee, the name of the establishment, the street address of the 1 City of Cape Canaveral, Florida Ordinance No. 0 2 -96 Page 7 establishment, the classification(s) of the license, the date of issuance, and the date of expiration. Term. All licenses issued under this Article shall be annual licenses which shall become effective on October 1st, on which date they shall have been paid for, and shall expire on September 30th of the following year. If a license is issued after October 1st in any year, but by March 31st of the following year, the applicant shall pay the appropriate license fee. If a license is issued after March 31st of any year. but by October 1st of the same year, the applicant shall pay one -half (1/2) the appropriate license fee. Renewals. Licenses shall be renewed annually. Subject to other provisions of this Article, a licensee under this Article shall be entitled to a renewal of his annual license from year to year. as a matter of course, by October 1st by presenting the license for the previous year and by paying the appropriate license fee. WI Expiration. A license that is not renewed under this Article by October 1st of each year shall expire. An expired license may be renewed by November 30th 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. Anv specified criminal act as defined under Section 10 -86, or as specified under other sections of this Article, which is conducted subsequent to the expiration. but prior to renewal, of a license shall result in the suspension of the license for a period of thirty (30) days commencing on the date the licensed is granted. An adult entertainment establishment may be further regulated, fined or penalized, including, but not limited to, license suspension and revocation, pursuant to any other provision of this Article for conducting specified prohibited activity. fel Cancellation. All expired licenses not renewed by November 30th shall be automatically cancelled by the City Manager. Sec. 10 -121. Annual License Fees; Levy of; Regulatory in Nature. Lal Levy of License Fees. There are hereby levied the following annual license fees under this Article for an adult entertainment establishment: City of Cape Canaveral, Florida Ordinance No. 0 2 -96 Page 8 M. An establishment having a license for an adult bookstore - one thousand dollars ($1,000.00); An establishment having a license for an adult theater as follows: (A) Having only adult booths - two hundred dollars ($200.00) for each booth limited to a cumulative fee not to exceed one thousand dollars ($1,000.00); or la Having only a hall or auditorium - fifteen dollars ($15.00) for each seat limited to a cumulative fee not to exceed one thousand dollars ($1,000.00); or (C) Having a combination of (A). and (B) - the cumulative license fee applicable to each under (A), and (B) limited to a cumulative fee not to exceed one thousand dollars ($1,000.00); and (D) Adult motel - one thousand dollars ($1,000.00). l An establishment having a license for an adult dancing establishment - one thousand dollars ($1,000.00). An establishment having a license for a massage establishment - one thousand dollars ($1,000.00). License Fees are Regulatory in Nature. The annual license fees collected under this Article are declared to be regulatory fees that are collected for the purpose of examination and inspection of adult entertainment establishments under this Article and the administration thereof. These regulatory fees are in addition to, and not in lieu of, the occupational license taxes imposed by other sections of the Code of the City of Cape Canaveral. SECTION 3. MISCELLANEOUS AMENDMENTS TO CHAPTER 10, ARTICLE IV, ADULT ENTERTAINMENT. The following code sections are hereby amended, as follows (underlined type indicates additions and strikeout type indicates deletions): 1 1 City of Cape Canaveral, Florida Ordinance No. 0 2 -96 Page 9 Sec. 10 -100. Unlawful activities at commercial establishments. Under this article, it shall be unlawful for any employee or customer or patron of any commercial establishment in the city, unless whether or not the establishment-is licensed under this article, and while on the premises to exhibit or display specified anatomical areas. Sec. 10 -122. Transferability. When a licensee shall have made a bona fide sale of the business which he is licensed under this division to conduct, he may obtain a transfer of the license issued under this division to the purchaser of the business, but only if, before the transfer, the application of the purchaser shall be approved by the city manager in accordance with the same procedure provided in section 10 114, 10 -116 and 10 117 for the issuance of new licenses. Before the issuance of any transfer of license, the transferee shall pay a transfer fee of ten percent of the appropriate annual license fee. Licenses issued under this division shall not be transferable in any way other than provided in this section. Sec. 10 -123. Licensee moving to new location; changing name of business. (a) New location. A person issued a license under this division may move his licensed premises to a new location and operate at the new location upon approval by the city manager of the licensee's application for change of location. The licensee shall submit to the city manager an application for a change of location, accompanied by an application fee set forth in section 10- 116(c)(2) appendix B to this Code at the time the application is filed. The application will contain or have attached to it a site plan as provided in section 10- 116(c)(1)(I). the area to be included in the new liccnscd premises, all windows, doors, entrances, exits and the fixed structural features of thc new liccnscd prcmiscs. The term "fixed structural features" shall have thc same meaning as in section 10 111(a)(9). If more than one license has been issued to the licensed premises at the old location, the licensee shall state in his application for a change of location which of the licenses are being moved to the proposed new location. Upon approval of the application, there shall be issued to the licensee a license for the new location without the payment of any further fee. SECTION 4. SEVERABILITY. If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other 1 1 City of Cape Canaveral, Florida Ordinance No. 02 -96 Page 10 provisions or applications of the Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared severable. SECTION 5. PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS. All Ordinances and Resolutions, or parts of Ordinances and Resolutions, in conflict herewith, are hereby repealed to the extent of the conflict. SECTION 6. INCORPORATION INTO CODE. This Ordinance shall be incorporated into the City Code, and any section or paragraph number or letter and any heading maybe changed or modified as necessary to effectuate the foregoing. SECTION 7. APPENDIX B - SCHEDULE OF FEES. The Municipal Code Corporation is hereby authorized to amend Appendix B - Schedule of Fees by incorporating therein the new adult entertainment fees provided in Section 2 of this Ordinance. SECTION 8. EFFECTIVE DATE. This Ordinance shall take effect immediately upon its adoption. 1 1 1 City of Cape Canaveral, Florida Ordinance No. 02 -96 Page 11 ADOPTED BY the City Council of the City of Cape , averal, Florida, this 20th APPROVED AS TO FORM: John K. Porter, " YOR NAME FOR AGAINST BRUNS X NICHOLAS X PETSOS PORTER X RANDELS X First Reading: 1/ 30 / 9 6 Posted: 1/31/96 Published: 2 / 5 / 9 6 Second Reading: 2/ 2 0/ 9 6