Friends of the San Francisco Entertainment Commission
Friends of the
San Francisco Entertainment Commission
Place of Entertainment - Extended Hours Premises – Comments – How to Help |
LEGISLATIVE DIGEST
[Entertainment Commission – Extended-Hours Premises Permits.]
Ordinance amending the San Francisco Police Code by amending Sections 1070, 1070.1, 1070.2, 1070.3, 1070.5, 1070.7, 1070.8, 1070.19, 1070.22, and 1070.24, by adding Sections 1070.28, 1070.29, 1070.30, 1070.31, 1070.32, and 1070.33; by repealing Sections 1070.4, 1070.12, 1070.17, 1070.20, 1070.20-1, 1070.21, and 1070.26; and by adding new Sections 1070.4, 1070.17, and 1070.20, relating to the application, approval, amendment, suspension, revocation, and transfer of Extended-Hours Premises Permits, including changes in penalties.
Note: This legislation would amend Article 15.2 of the San Francisco Police Code, which governs Extended-Hours Premises Permits. The provisions governing Extended-Hours Premises Permits are in many respects the same as those governing Place of Entertainment Permits, which are set forth in Article 15.1 of the Police Code. The proposed ordinance would incorporate by reference some provisions set forth in Article 15.1. Incorporating by reference avoids the necessity of repeating provisions in Article 15.2 that provide for the same authority and impose the same requirements as Article 15.1. For the convenience of the reader, this digest describes the changes that in the legislation simply incorporate by reference applicable sections of Article 15.1.
BUSINESSES REQUIRING AN EXTENDED-HOUR PREMISES PERMIT
Existing Law
Every premises to which patrons or members are admitted or allowed to remain between the hours of 2:00 a.m. and 6:00 a.m. which serves food, beverages, or food and beverages (including alcoholic beverages) for consumption on the premises or wherein entertainment, as defined in Section 1070, is furnished or occurs, must obtain an Extended-Hours Premises Permit.
Proposed Amendments
The definition of "Entertainment" would be changed as follows:
(1) The definition covers entertainment performed by either a professional or a non-professional entertainer.
(2) The definition includes karaoke as an example.
(3) The definition covers a fashion or style show whether those involved are professionals or non-professionals and even if the show is conducted by a nonprofit organization as part of its social activities for charitable purposes.
(4) The definition does not apply to activities conducted in a private residence.
APPLICATION REQUIREMENTS FOR EXTENDED-HOURS PREMISES PERMITS
Existing Law
Applicants must disclose criminal history information (for any crime except misdemeanor traffic violations) for the applicant, any officer, director, or member of the applicant and, for corporate applicants, any stockholder owning more than 10% of the corporation's stock.
Applicants must disclose a business plan specifying, among other information, the number of patrons, the types or classes of entertainment to be provided (in terms of the types of instruments, numbers of performers, and sound levels).
Applicants are not required to disclose those persons who appear on the business registration certificate or the person to whom a liquor license was issued for the business.
Proposed Amendments
Applicants for an Extended-Hours Premises Permit would be required to disclose the person to whom the liquor license was issued, those persons appearing on the business registration certificate for the business, and the manager of the business (defined as the person authorized to exercise discretionary power to organize, direct, carry out or control the operations of the business).
Applicants would also be required to disclose specified criminal history information for the applicant, the manager of the business, the person who appears on the business registration certificate, the person to whom the liquor license was issued, persons who will have authority or control over the business, and, except for publicly traded corporations, persons who directly or indirectly own or control 10% or more of the assets, ownership interests or voting interests of the applicant.
The criminal history information sought falls into two categories: (1) all criminal charges, complaints or indictments in the preceding five years which resulted in a conviction or a plea of guilty or no contest for specified criminal laws and (2) all criminal charges, complaints or indictments in the preceding five years for any other offense which is a felony or misdemeanor under California law if the offense arose out of the operation of a nightclub, dance hall, cabaret, Place of Entertainment, or an establishment that services food or beverages.
When describing the business plan, applicants would not be required to disclose the number of patrons or the types or classes of entertainment to be provided.
The requirement that applications be verified would be deleted.
GRANTING OR DENYING EXTENDED-HOURS PREMISES PERMITS
Existing Law
The Entertainment Commission is required to grant a permit unless it makes certain findings. The hearing must be held within 45 working days of the date that the completed application is received.
Upon an applicant's request, the Entertainment Commission shall issue a conditional approval of the permit application, pending approval of the permit by other City agencies, if the Commission has sufficient information to adequately evaluate the proposal and there are no grounds for denial. A conditional permit will expire nine months from the date of the Commission's final decision if the applicant has not received all other required permits
Proposed Amendments
The Entertainment Commission is required to grant a permit unless it finds that:
(1) The premises or the proposed operation of the business does not comply with the health, zoning, fire and safety requirements of the laws of the State of California or ordinances of the City and County of San Francisco applicable to the business; or
(2) Notwithstanding the mitigation provided under the security plan submitted by the applicant, the building, structure, equipment or location of the proposed business cannot adequately accommodate the type and volume of vehicle and pedestrian traffic anticipated; or
(3) The premises or the proposed operation of the business lacks adequate safeguards to prevent emissions of noise, glare, dust and odor that would substantially interfere with the public health, safety and welfare or the peaceful enjoyment of neighboring property; or
(4) The permit applicant has not provided a security plan that adequately addresses the safety of persons and property and provides for the orderly dispersal of individuals and traffic.
The Entertainment Commission is required to grant, conditionally grant, or deny a permit within 45 City business days of the date that the applicant has submitted a complete application, although this deadline is extended under certain circumstances. If the Commission fails to act within the required time, the permit shall be deemed granted conditioned on the permittee's obtaining required permits from other City departments within nine months and complying with all the requirements of the Article governing Extended-Hours Premises.
If the Entertainment Commission conditionally grants a permit subject to the applicant's receiving required permits from other City departments, but the applicant has not obtained the required permits within nine months, the conditionally granted permit shall be void.
SUSPENDING PERMITS
Existing Law
The Entertainment Commission may suspend an Extended-Hours Premises Permit if it determines that the (1) building, structure, equipment or location does not comply with all health, zoning, fire, and safety requirements or standards of State or local law; (2) the establishment has been operated in a manner that has harmed the public health, safety, or welfare by significantly increasing pedestrian traffic, disorderly conduct, or the level of noise and the permittee has failed, after being requested by the Police Department or Entertainment Commission to do so, to take reasonable steps to alleviate these conditions; (3) the proprietor or person in charge has violated or permitted the violation of certain State or local laws or failed to take reasonable steps, after being requested by the Police Department or Entertainment Commission to do so, to halt such violations; or (4) the proprietor or person in charge violates or permits the violation of any provision of Article 15.2 of the Police Code (the Article governing Extended-Hours Premises Permits) or of the permit in connection with the operation of the establishment.
The penalty for the first violation is suspension of the permit for 30 days, and for repeated violations within specified time periods, the penalty is suspension for periods of 60 and 90 days.
In addition, the Entertainment Commission may suspend a permit for 30 days for violation of the regulations or any provision of the Municipal Code.
Proposed Amendments
The proposed ordinance would provide three separate procedures for suspending an Extended-Hours Premises Permit:
(1) Suspension by Entertainment Commission. The Entertainment Commission would have the authority to suspend a permit if:
(a) The premises or operation of the business does not comply with health, zoning, fire, and safety requirements; or
(b) The permittee, or an employee or agent, has operated the business in a manner that has harmed the public health, safety, or welfare by significantly increasing pedestrian congestion, the incidence of disorderly conduct, or the level of noise and has refused or failed to take reasonable steps to alleviate these conditions after being requested to do so by the Police Department, the Entertainment Commission or the Director; or
(c) The permittee, or an employee or agent, has engaged in conduct on the premises of the business, or in connection with its operation, that would constitute a violation of specified state or local laws, or the permittee has failed to take reasonable steps within his control to halt conduct that would constitute such a violation after being requested by the Police Department, Entertainment Commission, or Director to do so.
(d) The permittee has implemented or maintained an admission policy or practice in violation of Police Code Section 3305 (prohibiting discrimination).
(e) The permittee, or any employee or agent, has violated any requirement of Article 15.2 or any other applicable ordinance, any regulation adopted under Article 15.1, or any condition placed on the permit.
(f) The permittee fails to comply with an approved security plan, or a revised plan when required to do so under the ordinance, or fails to submit a security plan when required under the ordinance. The period of suspension would be up to 30 days for a first violation and up to 60 and 90 days for repeated violations within a specified time period; the length of the suspension would depend on the seriousness and the frequency of the violations in light of the effort to correct them and the impact on the surrounding neighborhood.
(2) Suspension by Director, appealable to Entertainment Commission. The Director would be authorized to issue an order of limited suspension of a permit for up to seven days upon determining that (i) the Business has exceeded allowable noise emissions on three separate days within a 3-month period, but only if three noise emission reports showing excessive noise levels have been issued and notice of these reports given to the permittee or manager within three City business days of issuance or (ii) the permittee, or an employee or agent, has engaged in conduct that would constitute a violation of certain criminal laws, or the permittee has failed to take reasonable steps within his control to stop others from doing so, if the conduct occurs after the Director has provided notice of the problem and informed the permittee of corrective action to address the problem but the permittee failed to undertake it. The Director would be authorized to vacate an order of limited suspension under certain circumstances.
(3) Suspension by Director. The Director would be authorized to suspend a permit for up to 72 hours for public safety upon determining that the permittee, or an employee or agent, has engaged in conduct that would constitute a violation of certain criminal laws, or that the permittee failed to take reasonable steps within his control to halt others from doing so, if the conduct has resulted in serious bodily injury or death and continued operation of the business poses a serious threat to public safety.
REVOKING PERMITS
Existing Law
The Entertainment Commission may revoke an Extended-Hours Premises Permit if the permittee has knowingly made any false, misleading or fraudulent statement of material fact in the permit application, has failed to pay any fee or charge required under Article15.2, or has permanently ceased operation of the business. Revocation does not prejudice the right of an applicant to apply for a new permit.
Proposed Amendments
The Commission would be authorized to revoke an Extended-Hours Premises Permit if the permittee (1) has knowingly made any false, misleading, or fraudulent statement of material fact or has knowingly omitted a material fact in the application for a permit, or (2) has failed to pay any fee or charge required under Article 15.2. The Article would no longer provide for revocation in the event that a permittee permanently ceases operation of the business.
Revocation of a permit would not prejudice the right of any person to reapply for a permit under Article 15.2 or to appeal action on the reapplication to the Board of Appeals.
PERMITS NOT TRANSFERABLE EXCEPT FOR
PARTIAL CHANGE IN OWNERSHIP
Existing Law
No permit is transferable except with the written consent of the Entertainment Commission.
Proposed Amendments
No permittee may transfer an Extended-Hours Premises Permit to any other person. If a permittee sells or otherwise completely transfers ownership of the business to another party, the permittee is required to promptly surrender the permit to the Director. If the permittee fails to do so, the Director may revoke the permit.
Notwithstanding the prohibition against complete transfers of ownership, a permittee may change partners, shareholders or other owners of a business if the transfer results in a person owning no more than 50% of the business and the permittee obtains a permit amendment.
When a permit amendment is required for a partial change in ownership, the Director may act on the application and shall approve it unless disapproval may be warranted under the same standards governing the review of initial permit applications. If the Director determines that disapproval of the application may be warranted, he shall schedule a hearing for the next regularly scheduled meeting of the Entertainment Commission for a final determination.
PENALTIES
Existing Law
Any person who violates any provision of Article 15.2 governing Extended-Hours Premises is deemed guilty of a misdemeanor.
PROPOSED AMENDMENTS
Criminal Penalty. The actions that would give rise to a criminal penalty are more limited. It would be a misdemeanor for any person to operate without a valid permit.
Administrative Penalty. The Director would be authorized to issue an administrative citation for the violation of any condition imposed on a permit and of the provisions of Article 15.2 governing security plan requirements. If the citation is upheld, the violator would be required to pay a fine. The amount of the fine would be $100 for a first violation, $200 for the second violation of the same provision within one year of the first, and $500 for each additional violation of the same provision within one year of the second or subsequent violation.
Persons who have been cited may file an administrative appeal to the Controller. The Controller may designate the Director of the Department of Public works to serve as a hearing for these appeals, but for no more than 12 appeals in a 12-month period.
CONSIDERATION OF REQUESTS FOR EMERGENCY SERVICES
Existing Law
The Entertainment Commission may not consider any request for emergency medical or ambulance services to treat a permittee's patrons as a basis for suspending a permit.
Proposed Amendments
Every Permittee shall request emergency medical services when any person who has been injured on the premises of the Business needs emergency medical services. The failure to request such services, when such a request would have been reasonable under the circumstances, shall be grounds for suspension of the permit. The Entertainment Commission and Director may allow any circumstances involving the operation of the Business that relate to the injury as evidence supporting suspension of a permit, but may not allow the request itself as evidence to support suspension.
EXCEPTIONS TO REQUIREMENTS
FOR LIGHTING, BOOTHS AND MINORS
Existing Law
The Entertainment Commission may grant an exception to an Extended-Hours Premises from the provisions of certain requirements relating to lighting of the premises, booths, and minors being on the premises if the Commission finds that the premises (1) are used exclusively as a bona fide public eating place, (2) are a place of entertainment that has no liquor license, or (3) are operated by any public agency or by any educational, recreational or social agency, or by any bona fide fraternal, charitable, or religious or benevolent or any other non profit organization.
A decision by the Entertainment Commission denying an exception would be final except that an appeal may be taken to the Board of Review created by Ordinance No. 245-68, consisting of the Director of Administrative Services, the Controller, and the Assessor Recorder.
Proposed Amendments
The definition of a "bona fide public eating place" would be changed to read as follows: "A place regularly and in a bona fide manner used for the serving of meals for compensation, with suitable kitchen facilities containing conveniences for cooking an assortment of foods for ordinary meals." This definition deletes a provision defining "meals" as "the usual assortment of foods commonly ordered at various hours of the day." In addition, the definition of "guests" would be deleted.
The definition for exception (3) described above under "Existing Law" would be amended by using the definition of Bona Fide Nonprofit Club or Organization (which is the same definition for that term used in Article 15.1 governing Place of Entertainment Permits) instead of the language currently used in Section 1070.19(a)(3).
An appeal of the Commission's denial of an exception could be taken to the Board of Appeals, not the Board of Review.
ADDITIONAL PROPOSED AMENDMENTS
TO ARTICLE 15.2 OF THE POLICE CODE
In addition to the proposed amendments described above, the legislation would make the following amendments to Article 15.2 of the Police Code governing Extended-Hours Premises Permits.
Security Plans
The definition of "security plan" would be revised and the requirements for such plans expanded as follows.
Amending Permits
Permittees are required to operate the business for which a permit issues in a manner that is consistent with any condition imposed on the permit. A permittee may seek approval from the Commission to remove or change a condition imposed on a permit by applying for an amendment to the permit.
Extended-Hour Premises Permittees Required to Report Certain Information
Permittees would be required to report updated criminal conviction information for persons whose criminal history is required in the permit application.
Every Extended-Hours Premises Permittee, except for a publicly traded corporation, would be required to maintain a record of the name and address of every person who directly or indirectly owns or controls 10% or more of the assets, ownership interests or voting interests of the permittee and to make the information available to the Entertainment Commission upon request. Every permittee would also be required to report any change of such 10% ownership within 30 days of the transaction that effects the change. A "publicly traded" corporation is a company that has issued securities through an initial public offering which are traded on at least one stock exchange or over-the-counter market.
Entertainment Commission Authorized to Adopt Regulations
A proposed amendment to Article 15.1 governing Place of Entertainment Permits would authorize the Entertainment Commission to adopt regulations implementing the provisions of both Article 15.1 governing Place of Entertainment Permits and Article 15.2 governing Extended-Hours Premises Permits, including regulations governing the procedures for hearings before the Commission.
In addition, a proposed amendment to Article 15.2 would require the Entertainment Commission, in consultation with the San Francisco Police Department, to develop rules and regulations governing Security Plans under Articles 15.1 and 15.2, which would address the number of security guards required to protect the public safety in light of the number and placement of exits on the premises of a Business.
Appeals to the Entertainment Commission and Board of Appeals
The ordinance would specify the actions that may be appealed to the Board of Appeals, but would also provide that a permittee or permit applicant may seek immediate judicial review without exhausting administrative remedies before the Entertainment Commission or the Board of Appeals.