Chapter 5.28 — LIVE ENTERTAINMENT ESTABLISHMENTS5

Certain words or phrases used in this chapter are defined as follows:

“Entertainment” means any act, play, burlesque show, revue, pantomime, cabaret, fashion or
style show, scene, dance, song, song and dance act, or instrumental music participated in by one
or more employees, guests, customers or any other person or persons.

1. The following is included in the term “entertainment”: The presence of any performer,
dancer, employee, agent, model or other person, collectively and individually referred to as
“entertainer,” in any place of entertainment who engages in any specified sexual activity
(as that term is defined in Section 5.96.010 of this Code) not otherwise prohibited by
local, State or Federal law, or who exposes any specified anatomical part (as that term is
defined in Section 5.96.010) not otherwise prohibited by local, State or Federal law, or
who performs in attire commonly referred to as pasties or a G-string, or any other opaque
covering which does not expose the areola or nipples of the female breast, and while
covering the natal cleft and pubic area covers less than one inch on either side of the entire
length of the natal cleft and two inches across the pubic area.

“Individual viewing areas” means viewing areas such as booths, cubicles, rooms or stalls where
live entertainment is performed and which are less than one hundred fifty (150) square feet of
floor space.

“Owner” or “permit holder” or “permittee” means any of the following:

1. A sole proprietor or individual(s) who own or operate a place of entertainment;

2. All general partners of a partnership which owns or operates a place of entertainment;

3. All persons who hold a controlling interest in a corporation, or other limited liability entity
which owns or operates a place of entertainment.

“Permit” means any permit issued pursuant to this chapter.

“Place of entertainment” means any business establishment or concern open to members of the
public, with or without charge, in which entertainment is offered or performed.
(Ord. 95-17 § 2 (part), 1995; Ord. 96-5 § 1, 1996; Ord. 97-12 § 1, 1997; Ord. 99-2 § 1, 1999;
Ord. 2023-22 § 272, 2023)

No person or entity shall operate, or engage in, any business or commercial enterprise which provides entertainment in a restaurant, cafe, night club, bar, coffee house, or other place of entertainment, unless such person has first obtained a permit pursuant to this chapter. (Ord. 95-17 § 2 (part), 1995)

Applications for permits shall be filed with the City Manager on forms supplied by the City, and

5. Prior history: 1949 Code, §§ 4400—4409; Ord. 1054, 1170, 1185, 1568, 1620, 1676, 1738, 89-1, 89-6 and 94-7.

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City of Newport Beach, CA § 5.28.030 BUSINESS LICENSES AND REGULATIONS § 5.28.040

shall be accompanied by a fee established by resolution of the City Council which shall be no more than necessary to cover the costs of processing and investigation. (Ord. 95-17 § 2 (part), 1995)

The following information shall be submitted to the City Manager by the owner at the time of applying for a permit:

A. A description of all proposed entertainment business activities and anticipated occupancy;

B. A site plan describing the building and/or unit proposed for the entertainment establishment
and a fully dimensioned interior floor plan;

C. The application shall contain the following information:

1. The owner’s name, residence street address, and mailing address, if different, and
California driver’s license number and any and all aliases,

2. The name under which the entertainment enterprise is to be operated,

3. The telephone number of the enterprise and the address and legal description of the
parcel of land on which the enterprise is located,

4. The date on which the owner acquired the enterprise for which the permit is sought,
and the date on which the enterprise began or will begin operations at the location for
which the permit is sought, and

5. If the enterprise is owned and/or operated by a corporation, or other limited liability
entity, the name of each officer and director of the corporation. If the enterprise is
owned and/or operated by a partnership, the name of each general partner of the
partnership;

D. A statement under oath that the owner has personal knowledge of the information contained
in the application and that the information contained is true and correct;

E. A statement that the owner has read and understands the provisions of this chapter;

F. A statement whether the owner previously operated in this or any other County, City or
State under an entertainment establishment license/permit or similar business license, and
whether the owner has ever had such a license revoked or suspended and the reason
therefor, and the business entity or trade name under which the owner operated that was
subject to the suspension or revocation;

G. If the premises are being rented or leased or being purchased under contract, a copy of such
lease or contract shall accompany the application.
(Ord. 95-17 § 2 (part), 1995; Ord. 97-12 § 2, 1997)

A. Upon receiving an application for an entertainment permit, the City Manager shall conduct an investigation to determine if the proposed business is in compliance with the provisions of this chapter. The City Manager, shall, within fifteen days of receipt of a complete permit application, approve and issue the permit if all the requirements of this section have been

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City of Newport Beach, CA § 5.28.040 NEWPORT BEACH CODE § 5.28.041

met. If the City Manager determines that the application does not satisfy the requirements
of this chapter, he/she shall deny the application.

1. The applicant shall be served with written notice of the decision. Notice shall be
personally served or served by deposit in the United States mail, first class postage
prepaid, at the address shown on the application. Service shall be deemed complete
upon personal service or deposit in the United States Post Mail.

2. The City Manager shall take all lawful steps to insure that any applicant whose permit
has been denied pursuant to this section shall be afforded prompt judicial review of
the City Manager’s decision to deny the permit.

B. Standards for Approval of Permit. The City Manager shall approve and issue an
entertainment permit if the application and evidence submitted show that:

1. The place of entertainment is proposed to be located in a zone permitting the proposed
use under Title 20 of this Code;

2. If the occupancy limit of that portion of the premises where entertainment is
performed is greater than two hundred (200) persons, at least one security guard will
be on duty outside the premises, patrolling the grounds and parking areas at all times
while the business is open. An additional security guard will be on duty inside the
premises if the occupancy exceeds four hundred (400) persons. The security guards
shall be charged with preventing violations of law and enforcing compliance by
patrons with the requirements of this chapter. No security guard required pursuant to
this subparagraph shall act as a door person, ticket seller, ticket taker, or admittance
person while acting as a security guard;

3. The premises within which the entertainment is located shall provide sufficient sound
absorbing insulation so that noise generated inside the premises shall not be audible
anywhere on adjacent property or public right-of-way or within any other building or
other separate unit within the same building;

4. All entertainment described within Section 5.28.010 complies with the additional
regulations in Section 5.28.041;

5. All signage conforms to the standards applicable to the zone;

   6. All indoor areas of the place of entertainment in which patrons are permitted and
   entertainment is presented, shall be arranged in such a manner that the entire interior
   portion of the viewing area is open and visible from aisles and public areas of the
   place of entertainment and shall be open to view by management at all times.
   Visibility shall not be blocked or obscured by doors, curtains, partitions, drapes or
   any obstructions whatsoever;

   7. Every place of entertainment shall have a manager on the premises at all times when
   entertainment is performed;

   8. The place of entertainment must not operate or be open between the hours of two a.m.
   and seven a.m.

   (Ord. 95-17 § 2 (part), 1995; Ord. 97-12 § 3, 1997; Ord. 98-23 § 2, 1998)

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City of Newport Beach, CA § 5.28.041 BUSINESS LICENSES AND REGULATIONS § 5.28.041

The following regulations shall apply to all “entertainment” as described in Section 5.28.010(1):

A. If the place of entertainment is licensed to serve alcoholic beverages, the permittee shall
abide by the rules and regulations set forth by the California Department of Alcoholic
Beverage Control.

B. No person shall perform for patrons any “entertainment” as described in Section
5.28.010(1) except upon a stage at least eighteen (18) inches above the level of the floor
which is separated by a distance of at least six feet from the nearest area occupied by
patrons, and no patron shall be permitted within six feet of the stage while the stage is
occupied by an entertainer. This subsection shall not apply to individual viewing areas
where the stage is completely separated from the viewing area, floor to ceiling, by
plexiglass or other clear permanent barrier.

C. Stage or entertainment areas shall not be open to view from outside the premises.

D. Permanent barriers shall be installed and maintained to screen the interior of the premises
from public view for each door used as an entrance/exit to the business.

E. No exterior door or window shall be propped or kept open at any time during hours of
operation; any exterior windows shall be covered with opaque covering at all times.

F. No person under the age of eighteen (18) years shall be permitted within the premises at
any time during hours of operation.

G. The premises shall provide separated dressing room facilities for entertainers which are
exclusively dedicated to the entertainers’ use.

H. The permittee shall provide an entrance/exit to the premises for entertainers which is
separate from the entrance/exit used by patrons.

I. No entertainer shall have physical contact with any patron and no patron shall have
physical contact with any entertainer while on the premises.

J. All areas of the place of entertainment accessible to patrons shall be illuminated at least to
the extent of two foot-candles, minimally maintained and evenly distributed at ground
level.

K. Individual viewing areas shall be operated and maintained without any hole or other
opening or means of direct communication or visual or physical access between the interior
space of two or more individual viewing areas.

L. No individual viewing area may be occupied by more than one person at any one time.

M. All individual viewing areas shall be physically arranged in such a manner that the entire interior portion of the individual viewing area is visible from aisles and public areas of the premises. Visibility into the individual viewing rooms shall not be blocked or obscured by doors, curtains, partitions, drapes, or any other obstruction whatsoever.

N. No patron, guest or invitee shall directly pay or give any gratuity to any entertainer and no entertainer shall accept direct payment or gratuity from any patron.

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City of Newport Beach, CA § 5.28.041 NEWPORT BEACH CODE § 5.28.060

O. No owner or other person with managerial control over an adult-oriented business (as that term is defined in Section 5.96.010 of this Code) shall permit any person on the premises of the adult-oriented business to engage in a live showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, and/or the female breasts with less than a fully opaque covering over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specific anatomical part required to be covered. (Ord. 95-17 § 2 (part), 1995; Ord. 96-5 § 2, 1996; Ord. 99-2 § 2, 1999)

No entertainment establishment permit shall be sold, transferred, or assigned by any permit holder, or by operation of law, to any other person, group, partnership, corporation or any other entity, and any such sale, transfer or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of such permit, and such permit shall be thereafter null and void. A permit held by an individual in a corporation or partnership is subject to the same rules of transferability as contained above. Permit shall be valid only for the exact location specified in the permit. (Ord. 95-17 § 2 (part), 1995)

The City Manager may revoke a permit issued under the provisions of this chapter for any of the following reasons:

A. The permittee has ceased to meet the requirements for issuance of permit;

B. The applicant gave materially false, fraudulent or misleading information on the
application;

C. Music or noise from the establishment for which the permit was issued interferes with the
peace and quiet of the neighborhood;

D. The permit holder is convicted of a felony or misdemeanor occurring upon or relating to
the premises or lot upon which the place of entertainment is located, which offense is
classified by the State as an offense involving sexual crime against children, sexual abuse,
rape, distribution of obscene material or material harmful to minors, prostitution or
pandering, including, but not necessarily limited to, the violation of any crime requiring
registration under California Penal Code Section 290, or any violation of California Penal
Code Section 243.4, 261, 261.5, 264.1, 266, 266a through 266k, inclusive, 267, 286, 286.5,
288, 288.1 through 289, 311 through 311.10, inclusive, 314, 315, 316 or 647;

E. If, on two or more occasions within a twelve (12) month period, a person or persons has
(have) been convicted of a felony or misdemeanor for an offense set forth in subsection (D)
of this section as a result of such person’s activity on the premises or property on which the
place of entertainment is located, and the person or persons were employees, contractors or
agents of the place of entertainment at the time the offenses were committed;

F. If the permit holder or an employee has knowingly allowed prostitution, or solicitation for
prostitution, on the premises; or

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City of Newport Beach, CA § 5.28.060 BUSINESS LICENSES AND REGULATIONS § 5.28.110

G. The place of entertainment has been operated in violation of any of the requirements of this chapter. (Ord. 95-17 § 2 (part), 1995; Ord. 96-5 § 3, 1996; Ord. 2023-22 § 273, 2023)

A. If an applicant is aggrieved by any action or failure to act upon the part of the City Manager in issuing, failing to issue, suspending or revoking any permit under this chapter, such applicant may appeal to the City Council by filing with the City Clerk a statement addressed to the City Council setting forth the facts and circumstances regarding the action or failure to act on part of the City Manager. A member of the City Council, in their official capacity, may call for review any action on a permit by the City Manager under this chapter for the purpose of bringing the matter in front of the entire body for review. A call for review shall be filed with the City Clerk on a form provided by the Clerk. The City Clerk shall notify the applicant in writing of the time and place set for the hearing on his or her appeal or call for review.

B. The right to appeal to the City Council from the denial, suspension or revocation of any permit, or a call for review regarding the same, required by this chapter shall terminate upon the expiration of fifteen (15) days after service, in the manner provided in Section 1.08.080, of the notice advising the applicant of the action of the City Manager and of the applicant’s right to appeal such action to the City Council.

C. The hearing shall be held within twenty (20) days of the receipt by City Clerk of the appeal or call for review, or at the next regularly scheduled Council meeting, whichever is sooner.

D. The City Council may preside over the hearing on appeal or, in the alternative, appoint a hearing officer to conduct the hearing, receive relevant evidence and submit to the City Council findings and recommendations to be considered by the City Council. The City Council shall preside over a call for review hearing. The City Council shall render its decision within five days from the date of the hearing or, in the event that a hearing officer has been appointed, within five days on which the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council shall be final as to the City but subject to judicial review pursuant to California Code of Civil Procedure

Fees and permits required by this chapter shall be in addition to any license, permit or fee required under any other chapter of this Code. (Ord. 95-17 § 2 (part), 1995)

Notwithstanding any other provision of this Code, a violation of the provisions of this chapter shall not constitute a misdemeanor or infraction, but shall be enforced by appropriate action filed in the Superior Court. A violation of this chapter, or any provision of this chapter is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. (Ord. 95-9 § 2, 1995; Ord. 95-17 § 2 (part), 1995; Ord. 96-5 § 4, 1996; Ord. 99-2 § 4, 1999)

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City of Newport Beach, CA § 5.32.010 BUSINESS LICENSES AND REGULATIONS § 5.32.040