Chapter 5.66 — THEATERS

Notwithstanding any other provision of this code to the contrary, the provisions of this chapter shall govern the regulation of theaters.

(Prior code § 3-16.01)

For the purpose of this chapter, the following words and phrases shall mean and include:

"Admission charge" means any charge for the right or privilege to enter any theater including a minimum service charge, cover charge or a charge made for the use of seats and/or tables.

"Bona fide nonprofit club or organization" means any fraternal, charitable, religious or benevolent club or organization which is exempt from taxation under the Internal Revenue laws of the United States.

Entertainment.

"Entertainment" means any act, play, revue, pantomime, scene, song, dance, act, or song and dance act, conducted or participated in by one or more persons, whether or not such person or persons are compensated for such performance.

"Entertainment" also includes a fashion or style show, except when conducted by a bona fide nonprofit club or organization as a part of the social activities of such club or organization, and when conducted solely as a fund-raising activity for charitable purposes.

"Operator" means any person operating a theater in the city of Oakland including, but not limited to, the owner or proprietor of such premises, lessee, sublessee, mortgagee in possession, permittee or any other person operating such theater or motion picture theater.

"Person" means an individual, firm, partnership, joint adventure, association, social club, fraternal organization, joint stock company, corporation, estate, trust, receiver, trustee, syndicate, or any other group or combination acting as a unit excepting the United States of America, the state of California, and any political subdivision of either thereof.

"Theater" means a building or part of a building intended to be used for the specific purposes of presenting entertainment as defined herein, or displaying motion pictures, slides, or television pictures before an assemblage of persons whether such assemblage be of a public, restricted or private nature.

(Prior code § 3-16.02)

It is unlawful for any person to own, conduct, operate, maintain or to participate therein, or to cause or permit to be conducted, operated or maintained, any theater in the city without first having obtained a permit from the City Manager as provided in this chapter.

It is unlawful for any person to conduct, hold, maintain or carry on, or to cause or permit to be conducted, held, maintained or carried on, or to participate therein, any public display, exhibition or showing of moving pictures within the city unless there exists a valid permit therefor, granted and existing in compliance with the provisions of Chapter 5.02. It being further provided that no permit shall be granted for a drive-in or open-air theater if any portion of the screen upon which pictures are projected shall be so located as to render such projection visible to motorists upon a freeway within a distance of one and one-half miles from said screen.

Any place or premises for which a permit to operate is sought must conform to all existing health, safety, zoning and fire ordinances of the city.

(Prior code §§ 3-16.03, 5-4.01)

Every person desiring a permit pursuant to this chapter shall file an application with the City Clerk upon a form provided by said Clerk. The application shall specify:

A.

The address of the location for which the permit is required, together with the business name of such location;

B.

The name and proposed business address of the applicant. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation; and the applicant shall also set forth the date and place of incorporation, the names and residence addresses of each of the officers, directors, and each stockholder owning more than ten percent of the stock of the corporation. If the applicant is a partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. If one or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant apply as to such partner or partners;

C.

The names and addresses of the persons who have authority or control over the place for which the permit is requested, and a brief statement of the nature and extent of such authority and control;

D.

Such information pertinent to the operation of the proposed activity, including information as to management, authority control, financial agreements, and lease agreements, as the City Manager may require of an applicant in addition to the other requirements of this section. The foregoing examples are in explanation and not in limitation of the information which the City Manager may require;

E.

The address to which notice, when required, is to be sent or mailed, and the name and address of a person authorized to accept service of process, if not otherwise set forth herein;

F.

Whether the application is for a new permit or for the renewal of an existing permit;

G.

The City Manager may require further information as he or she deems necessary.

(Prior code § 3-16.04)

Every application for a permit under this chapter shall be verified as provided in the California Code of Civil Procedure for the verification of pleadings.

(Prior code § 3-16.05)

When an application is filed for a permit under this chapter, the City Clerk shall place the verified copy in the permanent records of his or her office, refer one copy to the City Manager, and one copy to the following officials: Chief of Police, Fire Marshal, Electrical Inspector, Director of City Planning, Building and Housing Official and Plumbing Inspector. Each of the officials to whom the copy of the application is referred shall make such investigation of the application as he or she shall deem advisable and shall make a written report of such investigation, together with his or her recommendations relative to disposal of the application, to the City Manager who shall proceed to act upon said application after a hearing set by the City Clerk for a date certain not less than five nor more than thirty (30) days from the date of filing such application. At such hearing, all persons interested shall be entitled to file objections, protests or recommendations in the premises and be heard. Such hearing may, by the City Manager, be continued over from time to time as circumstances may require, but for not more than sixty (60) days from the date of filing of the application.

(Prior code § 3-16.06)

The City Clerk shall in every case of application for a permit notify the applicant of the time and place of such hearing to be held thereon, and such notice shall be given at least three days before the date of such hearing. The City Clerk shall cause a notice to be published once in the official newspaper of the city at least three days before said hearing date, and cause a copy thereof to be posted upon the premises to be primarily affected by the granting of such permit, and a copy on the bulletin board in the office of the City Clerk. Such notice shall set forth the fact that such application has been filed, the name of the applicant, the nature of the thing to be permitted, and the time and place of hearing upon such application.

(Prior code § 3-16.07)

The City Manager shall issue permit if he or she finds:

A.

That the operation of the motion picture theater by the applicant will be carried on in a building, structure, and location which complies with and meets all of the health, zoning, fire and safety requirements and standards of the laws of the state of California and ordinances of the city applicable to such business operation;

B.

That the applicant, his or her employee, agent or manager has not allowed or permitted any of the following acts to be committed within any portion of the premises in question open to public view: masturbation, indecent exposure as defined in Section 314(1) of the State Penal Code, oral intercourse, sodomy, sexual intercourse, prostitution, solicitation for prostitution, as defined in Section 647(b) of the State Penal Code, or disorderly conduct, as defined in Section 647(a) of said Code;

C.

That the applicant, his or her employee, agent, or any person connected or associated with applicant as partner, director, officer, stockholder, associate, or manager, has not knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit, or in any report or record to be filed with the City Clerk;

D.

That the applicant has not had a similar type of permit previously revoked for good cause or, if such were the case, he has shown material change in circumstances, within a period of one year from the date of revocation.

(Prior code § 3-16.08)

The City Manager shall suspend or revoke an existing permit whenever one or more of the following conditions are found to exist:

A.

The building structure, equipment or location of such business does not comply with or fails to meet all of the health, fire and safety requirements or standards of the laws of the state of California or ordinances of the city applicable to such theater;

B.

The permittee, his or her employee, agent or manager has allowed or permitted any of the following acts to be committed within any portion of the premises in question open to public view: masturbation, indecent exposure as defined in Section 314(1) of the State Penal Code, oral intercourse, sodomy, sexual intercourse, prostitution or solicitation for prostitution, as defined in Section 647(b) of the State Penal Code, or disorderly conduct, as defined in Section 647(a) of said Code;

C.

The permittee, his or her employee, agent, or any person connected or associated with permittee as partner, director, officer, stockholder, associate or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit, or in any report or record required to be filed with the City Clerk;

D.

The permittee, his or her employee, agent or manager has violated any provision of this chapter pertaining to the theater in question, or any other provision of this code, or any other code of the city pertaining thereto;

E.

The permittee, his or her employee, agent or manager has allowed or permitted the premises in question or the activity conducted therein to become a public nuisance.

(Ord. 11913 § 1, 1996; prior code § 3-16.09)

Such revocation or suspension shall be made only upon a hearing granted to the holder of the permit, held before the City Manager after five days' notice to such permit holder, stating generally the grounds of complaint against him or her and stating the time and place where such hearing will be held. In the event of such revocation or suspension, any certificate issued in connection with the granting of such permit shall, by the holder thereof, be forthwith surrendered to the City Manager.

Such revocation or suspension of any permit shall be in addition to any other penalties more specifically provided in this chapter.

(Prior code § 3-16.10)

Any investigation, inquiry or hearing which the City Manager has power to undertake or to hold may be undertaken or held by such member of the City Manager's staff as he or she may designate and to whom the matter is assigned. The person to whom a matter is assigned shall be deemed a "Hearing Officer." In any matter so assigned the Hearing Officer conducting the investigation, inquiry or hearing within thirty (30) days after the conclusion of the investigation, inquiry or hearing shall report his or her findings and recommendations to the City Manager.

Within sixty (60) days after the filing of the findings and recommendations of the Hearing Officer the City Manager shall confirm, adopt, modify or set aside the findings of the Hearing Officer and with or without notice enter his or her order, findings, decision or award based upon the record in the case.

In such hearings, investigations, and inquiries by the City Manager or a Hearing Officer, he or she shall not be bound in the conduct thereof by the common law or statutory rules of evidence and procedure but inquiry shall be made in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the public and parties and carry out justly the spirit and provisions of this chapter.

No informality in any proceeding or the manner of taking testimony shall invalidate any order, decision, award or rule made as specified in this chapter. No order, decision, award or rule shall be invalidated because of the admission into the record and the use of any proof of any fact in dispute of any evidence not admissible under the common law or statutory rules of evidence and procedure.

(Prior code § 3-16.11)

Any person excepting to any denial, suspension or revocation of a permit applied for or held by him or her pursuant to the provisions of this chapter, or pursuant to the provisions of this code where the application for said permit is made to, or the issuance thereof is by, the City Manager, or any person excepting to the granting of, or to the refusal to suspend or revoke, a permit issued to another pursuant to the provisions of this chapter, or issued to another by the City Manager pursuant to the provisions of this code, may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal setting forth the specific grounds thereof. Such notice must be filed within fourteen (14) days after notice of such action appealed from is posted in the United States mail. Upon receipt of such notice of appeal the Council shall set the time for consideration thereof.

The City Clerk shall cause notice thereof to be given (1) to the appellant and (2) to the adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties, not less than five days prior to such hearing. At such hearing the appellant shall show cause on the grounds specified in the notice of appeal why the action excepted to should not be approved. Such hearings may, by the Council, be continued over from time to time, and its findings on the appeal shall be final and conclusive in the matter.

(Prior code § 3-16.12)

Any employee of the city charged with the enforcement or administration of any of the provisions of this code or state law pertaining to the premises in question shall be permitted to enter and inspect at any reasonable time, without charge or other restraint, such premises for the purpose of ascertaining whether or not any of the provisions of this code or state law applicable thereto are being violated.

(Prior code § 3-16.13)

Any permit required under the provisions of this chapter shall be exhibited in a conspicuous place in that part to which the public has access, of the premises to which such permit appertains.

(Prior code § 3-16.14)

No permit in this chapter required shall be transferable, nor apply to any premises other than originally specified as the location of the thing permitted, except upon written permission of the City Manager granted upon written application by the transferee, made in the same manner as may be required in the instance of the original application for such permit.

(Prior code § 3-16.15)

No operator, manager, or person in charge of a theater shall place or cause to be placed or maintained in such a location as can be viewed by persons on any public street and ways or on any portion of the theater premises to which the public has access without paying an admission charge any of the following photographic, pictorial or other graphic representations: sexual intercourse, sodomy or sadomasochism. The prohibition herein shall include simulation of such acts herein enumerated and shall include representations where the participants are clothed, partially clothed, or unclothed. Such prohibited representations include those where the genital or pubic areas are obliterated in whole or in part.

(Prior code § 3-16.16)

All prohibited photographic, pictorial or graphic representations shall be removed within ten days after the effective date of this chapter as to all theaters to which a permit has been issued prior to the effective date of this chapter.

(Prior code § 3-16.17)

No operator of a theater shall permit, or cause to be permitted, any entertainment or film to be viewed at any time from the street, sidewalk or highway.

(Prior code § 3-16.18)

Any person violating any of the provisions or failing to comply with any legal requirements of this chapter shall be guilty of a misdemeanor. Each person shall be guilty of a separate offense for each and every day during which any portion of any violation of any provision of this chapter is committed, continued or permitted by such person, and shall be punished accordingly. In addition to the penalties hereinabove provided, any conditions caused or permitted to exist in violation of any of the provisions of this chapter shall be deemed a public nuisance and may by the city be abated as such.

(Prior code § 3-16.20)

Nothing contained in this chapter shall be construed as invalidating any permit issued prior to the enactment of this chapter or abating any action now pending under or by virtue of any provision of this code which no longer has any application to theaters; or as discontinuing, abating, modifying or altering any penalties accruing, or to accrue, or as waiving any right of the city under any provision of this code regulating the maintenance or operation of any theater in force at the time of passage of the ordinance codified in this chapter.

(Prior code § 3-16.21)