Memorandum

City of Lawrence

Legal Services

 

TO:

David L. Corliss, Interim City Manager

 

FROM:

Scott J. Miller, Staff Attorney

 

Date:

May 31, 2006

 

RE:

Nightclub, Entertainment Venue, and Downtown Safety Efforts

 

 

 

INTRODUCTION

 

At your request, I have researched several different regulatory frameworks or policy initiatives that might be considered to enhance the nighttime safety of our downtown area and the safety of the patrons of Lawrence’s nightclubs and other entertainment venues.  While this memorandum is not meant to be exhaustive of every potential tactic used to deter violence and other crime in these areas, I believe it to be a fair survey of the efforts some other cities have taken to address similar concerns.  No single idea should be viewed, however, as a one-size-fits-all solution.  I believe the City might be best served by picking and choose among several of these ideas to craft an individual solution for our unique concerns.

 

Lawrence is far from alone in its downtown and nightclub safety concerns.  These concerns transcend national borders.  Indeed, some of the solutions presented below were pioneered in cities in Canada, the United Kingdom, and Australia as well as the United States.  Many tools available to cities in other countries or other states may not be available to Lawrence, however, because of the difference in the state and national laws that apply to different jurisdictions.  For this reason, I will present the proposed courses of action very generally.  After the Governing Body determines if any of these ideas are worthy of further discussion, they can be further fleshed out and refined to provide an example of how they might be implemented in Lawrence.

 

Before turning to these new ideas, however, I will discuss the licensing of establishments that serve alcoholic beverages and the reasons that the licensing scheme is not useful as a means of local control over licensed establishments.

 

DRINKING ESTABLISHMENT LICENSES

 

Often, upon hearing about problems that have taken place in a bar, nightclub, or other business where alcoholic beverages are served, members of the public wonder why the City does not revoke the business’ liquor license.  While the City has significant control over the issuance and revocation of licenses to serve cereal malt beverages, most businesses operating as bars or nightclubs are licensed as drinking establishments, allowing the service of liquor by the drink.  The City does license drinking establishments, but the ability to suspend those licenses is given to the Kansas Secretary of Revenue by K.S.A. 41-2611.  The City’s fee for a license is essentially a license tax under K.S.A. 41-2622(b).  The governing body of a City is allowed to request a hearing before the Department of Revenue at the time a drinking establishment license is applied for or renewed, and it may provide testimony urging that the Department of Revenue refuse to grant or renew a license.  K.S.A. 41-2652 directs that any such testimony be considered in a licensing decision.  Ultimately, however, the decision regarding whether to grant, deny or revoke a license is left to a state agency.  This falls short of substantial and immediate local control over problem drinking establishments, and if that is the end goal, other options need to be considered.

 

ENTERTAINMENT CLUB LICENSING

 

It is clear that Kansas law would prohibit the imposition of a City licensing scheme on drinking establishment owners based upon their sale of alcoholic liquor.  Many cities have recognized, however, that many of the safety issues present in some drinking establishments exist not because of their status as  drinking establishments, but instead because they are places of entertainment.  To address the problems generated by large groups of people in entertainment venues, these cities have enacted regulatory licensing schemes that apply to both drinking establishments and places that do not see alcohol where large groups of people gather to dance, listen to live performances, or otherwise congregate to be entertained.  These ordinances focus on the safety issues inherent in these situations, and attempt to make certain that these entertainment events are conducted in a safe and legal atmosphere.  These licensing schemes are known by various names, including entertainment club licenses, nightclub licenses, dance licenses, and places of public assembly licenses.

 

There are a variety of issues that might be addressed in such an ordinance.  Obviously, one of the most important concerns is whether the operation of the entertainment venue is having a deleterious effect on the public health, safety or welfare of the public or the surrounding neighborhood.  Some of the concerns that have been addressed in other cities through the implementation of a licensing scheme are noise and litter problems, the incidence of disorderly conduct, violence, or other crimes by individuals in the establishment or immediately after leaving the establishment, and repeated over-occupancy issues.  These ordinances also sometimes address the quantity of and training of security in licensed establishments based upon their occupancy loads, the hours of operation of the entertainment venue, require that the venues have security camera systems with recordings available to the police in case a crime is committed on the premises, and sometimes even provide minimum acceptable levels for safety related technical issues like lighting levels.  In short, a wide variety of variables can be manipulated to provide a local solution to the unique problems of a given locality.

 

One of our nearest neighbors with such a licensing scheme is the City of Olathe.  Their regulations are found in Chapter 5.10 of their municipal code, and the license requirement applies to “warehouse entertainment clubs.”  Whether or not an entertainment club is a warehouse entertainment club depends upon its fire occupancy rating.  Any commercial premises offering entertainment to its patrons with an occupancy rating of more than 350 is required to be licensed.  The definition of entertainment is fairly broad and includes live performers, dancing to live or recorded music, and listening to a “DJ” or disc jockey, but there are many exceptions to the ordinance for incidental background music, movie theaters, other theaters, wedding receptions, and other similar events.  At the time of application for a license, a written security and emergency management plan is required to be filed.  Specific license conditions may be imposed that are necessary, based upon specific and articulable facts, to protect from criminal activity, prevent public nuisances, and to enhance fire protection, traffic control, crowd control, security lighting and emergency access.

 

A public hearing is held before the granting or renewal of a license for a warehouse entertainment club.  The licensee is subject to many obligations, including the hiring of a specified number of licensed security personnel.  Law enforcement officers have free access to the clubs for enforcement and inspections.  A license can be suspended for many reasons, including if the establishment becomes proximate cause for a significant increase in criminal activity on the premises or in the immediate vicinity.   A copy of the Olathe ordinance is included as an attachment to this memorandum.  Also included are similar ordinances from several other cities for comparison.  If the City of Lawrence were to impose a licensing scheme it is important to realize that a failure to obtain or suspension of a license does not result in the mandatory closing of the business.  Instead, the failure to obtain the license means that the business may not legally host entertainment.

 

If the Governing Body chooses to pursue the adoption of such a scheme, there are several questions that must be answered.  These include:

 

·        What type of entertainment do we seek to regulate?

·        Do we want to only regulate entertainment venues above some certain occupancy?  If so, what occupancy? 

·        What are the primary harms that are being legislated against?  Is the City worried most about criminal activity?  The impact of having an entertainment club on the surrounding neighborhood?  The safety of individuals within the club? 

·        Should security measures or other technical requirements be included in the ordinance?  If so, how do we determine appropriate levels?

·        What should be the penalty for noncompliance?

·        To what extent should business owners be responsible for the impact of their business’ patrons on the surrounding community?  How do we measure that impact?

 

If the Commission decides to proceed with the drafting and consideration of a specific licensing ordinance, answers to these questions would allow for the presentation of a much more finished initial project than if staff is forced to speculate about the will of the Governing Body.

 

SECURITY LICENSING

 

One way that many cities have attempted to address problems in their entertainment venues is by requiring licensed security to work at the venues.  This sort of requirement could be incorporated into an entertainment venue licensing scheme or could be considered independently.  Most security licensing schemes would require background checks of all license applicants for past criminal convictions.  Some also require a certain amount of training prior to licensure.  Such training would include use of force rules, anger control, obtaining verbal compliance, the criminal laws of the jurisdiction in question, and other appropriate subjects.  Licensed security personnel could be required to report criminal law violations to the police that they are made aware of while working.  This is very different than the current situation as security personnel may have an incentive to be less than truthful about the criminal activity going on at a business when the security officer’s sole loyalty is to the business owner because the business owner might be subject to prosecution or loss of licensure as a result of the reporting of the activity. 

 

Having well-trained and professional security personnel at work in crowded, sometimes emotionally charged locations arguably provides better protection to the people who attend an event at a bar, club or other entertainment venue.  Training in tactics that do not involve use of force may keep some circumstances from escalating, and if they do escalate the trained security personnel are better able to deal with the situation in a lawful and measured manner.  Also, by making individual licensees responsible for alerting the police when a crime has occurred, there is a better chance to prevent displacement of the problem from inside the establishment to the streets, sidewalks and parking lots of the City and perhaps to allow for police intervention at a time that is still meaningful – before the problems spin out of control.

 

On the downside, there would be an expense to both the City for administration of the program and development of training requirements and to the business owners themselves who would likely have to pay to train their security staffs.  Also, the questions of how many trained security personnel would be required and whether they would be required in some or all entertainment venues would need to be addressed.

 

BARWATCH, CLUBWATCH AND PUBWATCH

 

An approach that has won awards for problem-oriented policing in Canada and the United Kingdom is the one called alternatively Barwatch, Clubwatch or Pubwatch.  This approach, which I shall call the Pubwatch approach for the sake of brevity, is based upon many of the principles of the highly successful neighborhood watch program.  The program is a cooperative venture between the owners of drinking establishments and the local police department aimed at presenting a unified front to those individuals who would cause trouble in and around drinking establishments.  While the effort is jointly private sector and government, the program itself is directed by bar owners.

 

Although the program comes in many permutations, the basic concept is that if an individual is barred from one Pubwatch establishment, he or she is then barred from all the Pubwatch establishments.  This sort of program likely would not deter hardcore, violent criminals from criminal acts in or near a bar, but might be effective in providing an additional behavior incentive to most people.  Another part of the program, as it is usually adopted, involve strengthening the relationship between bar owners and the police department so that the police are not seen as a hindrance to a profitable business but are instead viewed as a resource to keep the people inside and outside of the bars and clubs safe.  Often, Pubwatch programs employ some sort of technological solution to keep track of banned individuals and to communicate among bars regarding potential troublemakers or to share security resources when necessary.

 

The effectiveness of the Pubwatch system is largely predicated on how well bar owners “buy in” to the idea.  The City cannot force businesses to participate, but it is possible that some bar owners would prefer this sort of effort over a more regulatory attempt at problem solving.  In order for the program to be truly effective, however, a high percentage of the establishments in the City, or at least in the downtown area, would need to participate.  If the City Commission is favorable to this sort of idea, the next step would likely be to schedule an informational meeting among affected business owners to gauge potential interest.  It might be possible to legislatively encourage the formation of such an entity by providing incentives for participation within an entertainment venue licensing scheme.

 

POLICE RESPONSE / DOWNTOWN CAMERA SYSTEM

 

I have spoken with Chief Ron Olin, and he has assured me that the Police Department continues to consider new and innovative patrol deployments and tactics in an attempt to combat the crime that occurs in the downtown area.  The police department has embraced technological solutions, like computer aided dispatching and mobile data terminals, as a means of making certain that its resources are effectively deployed.  One technological tool that has been utilized with some success to help police downtown areas is the use of actively-monitored closed circuit television cameras. 

 

Active monitored cameras are monitored by a live individual who is actually viewing the output from the cameras in real time.  The primary benefit to active monitored cameras is that the camera operator can alert police officers in the monitored area of any suspicious activity, or activity that appears to be a precursor to violence.  Some communities use police department employees to monitor cameras, while others rely on citizen volunteers to man the monitoring stations during peak times.  In a city the size of Lawrence, it is unlikely that fulltime monitoring of the camera system would be an efficient use of resources.  Monitoring during times of peak activity would give the police department a means to preempt crime, and once the effectiveness of the camera system becomes known, it might have an additional deterrent effect.  Although some studies indicate that cameras that are not monitored have little or no effect on crime rates, the cameras can often provide valuable evidence if the police are called upon to investigate crimes that have taken place within the monitored area.  Therefore, even if they were not monitored, the cameras would have some positive law enforcement effect.

 

If the Commission wants to explore this option, additional research would need to be done on how to effectively implement such a system.  The effectiveness of cameras is a subject of wide debate, but they do appear to work in some areas.  The challenge will be to determine what the characteristics are of the places where they have been effective, and to tailor a program to the City’s needs.  If the City Commission has any interest in this sort of program, I should be able to provide cost and effectiveness estimates in a reasonable amount of time.

 

CONCLUSION

     

This memorandum is only a brief survey of some of the options available in addressing concerns regarding drinking establishments, entertainment venues, and more generally downtown safety.  The possible courses of action presented are not incompatible with one another.  They may be adopted together or separately, in any combination.  There are many policy decisions that need to be made by the Governing Body concerning the propriety and adequacy of these types of programs, and then additional research will be necessary to ensure that any solution selected is implemented in a way that is legal and enforceable.  Please let me know if you need any other work on these issues.