Memorandum

Memorandum

City of Lawrence

Legal Services

TO:	Toni Wheeler, Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	April 26, 2007
RE:	Downtown and Entertainment Venue Safety

During the past year, I have offered the City Commission some fairly voluminous information regarding the issues of downtown and entertainment venue safety. The information consists primarily of memoranda that I have authored and illustrative examples of ordinances from other cities addressing some of the concerns that have been expressed regarding downtown Lawrence as well as entertainment venues throughout the City. The purpose of this memorandum is to consolidate all the information in one place for ease of reference.

The first memorandum that I drafted, dated May 31, 2006, is a broad overview of several downtown and entertainment venue safety measures that could be considered. It is included with this document as Appendix A.

The next memorandum focused on the major policy questions that would need to be answered to create an entertainment venue licensing system for the City of Lawrence. It is integrated into this document as Appendix B, and was drafted on December 21, 2006.

The last memorandum presented a brief outline of the provisions of a possible entertainment venue licensing ordinance. That March 7, 2007 document is attached as Appendix C. Please note that the outline is not intended to be written with the precision of an ordinance but instead represents one set of policy choices that could be made.

As always, I stand ready to draft an entertainment venue licensing ordinance that reflects the policy choices made by the Governing Body. If any of the other options originally presented need further fleshing out, or if there is another idea that has not been previously considered that the Commission is interested in, I would be glad to work on advancing those ideas as well.

As a final note, I should mention that the memoranda refer to a set of ordinances from other cities. Those ordinances are supplied with this document in an accompanying file.

Appendix A

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 choosing 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 serve 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.

In passing its ordinance, the Olathe City Council made several findings regarding the businesses it sought to regulate. These findings included the fact that warehouse entertainment clubs often cause a public nuisance such as excessive noise, litter and trash, traffic congestion and obstruction of emergency access. Further, the ordinance specifically cites the need for an increased police presence to keep the public peace at such establishments and the commensurate increase in costs to the public as reasons that justify the ordinance’s provisions. These concerns are some of the same concerns that are present in Lawrence as well. For example, there are times when virtually every available City of Lawrence police officer is in the downtown area handling an incident or emergency at an entertainment venue. Of course, this is just one in a list of potentially valid concerns, including the increase of criminal activity or nuisance behavior, which might suggest that it is appropriate to enact such an ordinance.

An important thing to realize, and something that the Olathe ordinance illustrates, is that failure to meet licensing requirements does not necessarily put a venue out of business. The actual result of a failure to obtain or maintain a license is that the business may not host entertainment however that term is defined in the licensing scheme. This results because, as mentioned above, any ordinance of this type enacted in Kansas creates a bifurcated licensing system. The absence of an entertainment license does not have any effect on a drinking establishment license, and as a result the business may still remain open to dispense alcoholic liquor.

Olathe’s approach is not the only possible approach. As a review of the attached material indicates, cities take a wide variety of approaches in the licensure of entertainment venues depending on the targeted harms. Merely because something is contained in another city’s ordinances, however, does not guarantee that it is effectively enforced there, and it certainly does not guarantee that it would be enforceable here given the difference in state laws. That is why it is important to tailor the proposal to our community’s specific needs. The next section of this memorandum discusses some of the policy questions that must be answered to effectively implement a licensing scheme in Lawrence.

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

1. What type of entertainment do we seek to regulate?

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

3. 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?

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

5. What should be the penalty for noncompliance?

6. 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.

Appendix B

Memorandum

City of Lawrence

Legal Services

TO:	Toni Wheeler, Interim Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	December 21, 2006
RE:	Entertainment Venue Licensing

Introduction

Earlier this year, I authored a memorandum discussing several measures that might improve the safety of our downtown area and other places of public assembly. It is my understanding that at this time the Governing Body wishes to consider one of those options – a licensing scheme for entertainment venues.

There are many ways to implement such a scheme that may positively impact safety, and a myriad of policy decisions that must be made to tailor such a scheme to the requirements of the City of Lawrence. The factors that must be balanced in each city are unique and while other cities’ efforts provide some guidance, what looks good on paper does not always function well in practice. Before proceeding with analysis of specific options, then, it is important to discuss why we need legislation to address these concerns, what such a proposal might accomplish, and what it will not achieve.

The Drinking Establishment License

The obvious first question regarding entertainment venue licensing is why these concerns cannot be addressed through the liquor licensing scheme as they are in many other cities and states? After all, virtually every entertainment venue has a liquor license, and the perception is that venues that serve alcohol are more likely to be problem locations than those that do not. The answer is that liquor control laws differ markedly from state to state, and in Kansas those laws vest authority to control establishments that sell liquor by the drink in the hands of the State, and not local, government.

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. Because the City has no independent ability to make licensing decisions, the City’s fee for a license is essentially a license tax authorized under K.S.A. 41-2622(b). This contrasts directly with cereal malt beverage licenses because the City is given direct authority over these licenses. Most entertainment venues, however, are licensed as drinking establishments as opposed to maintaining a cereal malt beverage license.

That is not to say that the City has no ability to influence the Secretary of Revenue’s licensing decisions. Liquor licenses typically must be renewed on an annual basis, and the City receives notice of the licenses up for renewal 45 to 60 days before they are scheduled to be renewed. The governing body of a City is allowed to request a hearing before the Department of Revenue at that time, 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 establishments.

Attainable Goals

In light of the fact that liquor licensing is not within the City’s control, are there any other means to attempt to mitigate the harms attributed to some establishments? Taking a step back and reframing the issue suggests that the answer to this question is yes. Although the use of alcohol clearly inhibits one’s inhibitions and sometimes fuels crime and neighborhood problems, at a more fundamental level these problems may occur at any public place held open for people to gather for entertainment. Therefore, if a city may not affect the problems in question through liquor licensing, might it combat the same problems with a licensing scheme for entertainment venues. The answer most likely is yes, provided that progress is measured by realistic goals. Licensing schemes work very efficiently when they are used to provide operational rules and procedures aimed at addressing specific problems. For example, minimum equipment and security requirements, the training of venue personnel in appropriate means of defusing hostility, hours and methods of operation, and many other things may be addressed with such a scheme, and each will be discussed below in turn. As a general rule, the more concrete and specific a goal is, the more easily it may be achieved by regulatory efforts.

Limitations

While venue licensing is good at meeting a wide range of specific and concrete goals, it has many limitations. Often, one of the immediate goals of this sort of licensing scheme is to mitigate the effects of an entertainment venue on the surrounding properties and neighborhoods. To the extent that the problems at issue can be addressed by specific steps that are clearly within the power and responsibility of the venue owner or operator, the regulatory scheme is very powerful. To the extent that the problems at issue are occurring within or very close to the entertainment venue, the regulations may produce very efficient results. On the other hand, there are no easy answers regarding what the exact responsibility of an entertainment venue operator is regarding his or her patrons’ behaviors, and when those responsibilities begin and end.

Just as every City’s response to its unique problems requires a unique solution, that solution will provide a wide variety of unique challenges that must be navigated successfully if the law is to have the positive effect that is desired. It is my opinion that entertainment venue licensing cannot resolve every ill that sometimes results when people gather together for socializing or entertainment. Neither can it fully salve the wide variety of citizen frustrations that are caused by having some entertainment venues in their neighborhoods or in their city. For the licensing scheme to have the most impact, it must be used to address specific problems in conjunction with a sufficient police presence dedicated to enforcing existing Kansas and Municipal criminal law. Legislation without an adequate enforcement mechanism is unlikely to be successful.

Laws of Other Cities

Although I believe that the City of Lawrence would be best served by drafting its own ordinance based upon our local conditions, other cities’ attempts to enact a licensing scheme are illustrative. I have included the ordinances of several cities as an attachment to this document for comparison purposes. A review of the ordinances shows that they focus on the safety issues inherent in many types of entertainment venues, and attempt to make certain that entertainment events are conducted in a safe and legal atmosphere.

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 apply 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.

In passing its ordinance, the Olathe City Council made several findings regarding the businesses it sought to regulate. These findings included the fact that warehouse entertainment clubs often cause a public nuisance such as excessive noise, litter and trash, traffic congestion and obstruction of emergency access. Further, the ordinance specifically cites the need for an increased police presence to keep the public peace at such establishments and the commensurate increase in costs to the public as reasons that justify the ordinance’s provisions. These concerns are some of the same concerns that are present in Lawrence as well. For example, there are times when virtually every available City of Lawrence police officer is in the downtown area handling an incident or emergency at an entertainment venue. Of course, this is just one in a list of potentially valid concerns, including the increase of criminal activity or nuisance behavior, that might suggest that it is appropriate to enact such an ordinance.

An important thing to realize, and something that the Olathe ordinance illustrates, is that failure to meet licensing requirements does not necessarily put a venue out of business. The actual consequence of a failure to obtain or maintain a license is that the business may not host entertainment, as that term is defined in the licensing scheme. This results because, as mentioned above, any ordinance of this type enacted in Kansas creates a bifurcated licensing system. The absence of an entertainment license does not have any effect on a drinking establishment license, and therefore the business may still remain open to dispense alcoholic liquor.

Policy Questions

Because of the breadth of policy questions that must be answered during the ordinance drafting process and the wide variety of techniques that may be used to combat the harms perceived to be associated with some types of entertainment venues, advance guidance from the Governing Body on the acceptable parameters of the licensing scheme would seem to be appropriate. While the list of questions discussed below is by no means exhaustive, direction on these issues would provide a basic framework that other provisions could be appended to.

7. What type of entertainment venues do we seek to regulate?

This is perhaps the most fundamental question that must be answered. Many things can be construed as entertainment. Concerts, plays, song and dance acts, patron dancing, motion pictures and video and the playing of recorded music are all examples of activities that some cities regulate. Clearly the more difficult question is whether we wish to regulate the same activities in some contexts and not in others. For example, some cities exempt the playing of recorded music in retail stores and restaurants from the licensing requirements, while regulating it in club settings.

One factor that cannot generally be used as a distinguishing factor in a licensing scheme is the content of the performance. For example, it would be generally impermissible to require a venue playing rock music to be licensed and allow an identical venue playing bluegrass music to be exempted from the licensing requirements. Exceptions should be based upon content neutral considerations.

8. Do we wish to only regulate entertainment venues above some certain occupancy? If so, what occupancy?

From a City resources standpoint, an argument can be made that at a certain level crowds get large enough to overwhelm the City’s ability to effectively respond to public safety emergencies and traffic problems associated with those crowds. This might suggest that it is more appropriate to regulate only the largest venues, as would the fact that larger businesses might be better able to accommodate the administrative overhead that is necessary to comply with a licensing scheme. On the other hand, venues of any size might create neighborhood problems that are could be addressed in a licensing ordinance. The question, then, is where to draw the line.

9. 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?

A licensing ordinance can be drafted to be most effective if there are a series of tangible and concrete harms that it is designed to protect against. The more general the harms, the more difficult it is to draft an ordinance that is sufficient to combat those harms, is enforceable in court, and passes muster under Fourteenth Amendment vagueness analysis. What harms do we wish to protect against in Lawrence?

10. Should security measures or other technical requirements be included in the ordinance? If so, what are appropriate levels?

Many licensing ordinances require licensed venues to maintain a written security and evacuation plan. Some mandate lighting requirements, the employment of licensed security officers, and specific training for some or all venue employees. Other requirements that may be imposed include the maintenance of a surveillance camera system that may be accessible to the police if an incident occurs in the licensed premises. On the other hand, it is possible to draft a licensing scheme that has none of these requirements.

11. Should closing times be specified in the ordinance? Should certain types of venues be age restricted?

These questions are fairly self-explanatory, but the modification of closing times or restricting the ages of the patrons that may be admitted to entertainment venues are both provisions that may be included in a licensing scheme.

12. What should be the penalty for noncompliance?

Should the substantial violation of licensing provisions result in the immediate suspension or revocation of an entertainment license, or might there be appropriate intermediate sanctions or restrictions that may be placed on a licensee? For example, would limiting the licensee’s occupancy, hours of operation, requiring other security measures or similar probationary requirements be more appropriate? The former options have the benefit of requiring very little City staff supervision to implement while the more detailed options require more involved compliance enforcement.

Also, would it be appropriate to impose criminal penalties not only for operating without a license, but also for other acts associated with the operation of the entertainment venue. For example, if an operator was limited so patrons of at least 18 years of age should there be criminal liability for admitting younger patrons similar to the liability imposed for serving alcohol to underage individuals?

13. 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?

This is without any doubt the thorniest issue from a drafting and enforcement perspective. It is relatively easy to impose liability on a business owner for things that occur on his or her business premises. The more difficult question is how and when liability can be imposed for actions by a licensee’s patrons before or after they have left the business in areas where the business owner has no direct control. There is a paucity of authority on this issue in Kansas. A search of the law of other states, however, demonstrates that a public nuisance theory has been used, from time to time, to prohibit certain businesses from operating due to the effect that those businesses have on the surrounding community.

A line of several Pennsylvania cases illustrates this reasoning. In Reid v. Brodsky, 397 Pa. 463, 471, 156 A.2d 334 (1950) the court ruled that:

Until the establishment of this restaurant in the area such offensive public conduct was unknown; it was the establishment of the business within this area which attracted these persons whose conduct so mortified and disgusted the residents of this neighborhood. The factor which introduced this conduct into the area was the establishment of this taproom-business with its attraction for undesirables from other areas; assuming arguendo, that appellants could not control the conduct of their patrons outside the premises, is that any excuse for the continuance in business of this establishment whose existence is solely and primarily responsible for the attraction of those persons into this neighborhood whose conduct so offends the morals of the property owners situated therein? Assuming that appellants could not control the conduct of their patrons, is this business which brings into the area by way of attraction those persons whose conduct is reprehensible to be permitted to be operated simply because it has been given an aura of respectability and legality by the issuance of a liquor license? The conduct which has disturbed the peace and quiet of this residential area and affronted the sensibilities of appellees endeavoring to maintain in this urban area a decent, clean and wholesome environment in which to live and rear their families directly resulted from the operation of this taproom-restaurant. The only practical manner in which this area can be protected from this unwholesome conduct is through a cessation of the operation of this business

The Pennsylvania courts have reaffirmed this reasoning in Commonwealth v. Graver, 334 A.2d 667 (1975), and Commonwealth v. J-D 201 Corp., 38 Pa. D. & C.3d 279, 1983 WL 1481 (Pa.Com.Pl. 1983).

Of course, whether identical reasoning would be adopted in Kansas is a question that still must be decided. Generally, nuisance analysis has been used for things that have happened on or perhaps have issued from a property, such as litter or noise. If this sort of theory is included in a licensing scheme, I think it is important to codify an objective means of measuring an entertainment venue’s impact on the surrounding area. An example might be the increase in crime rates in a neighborhood while a business is hosting entertainment.

Because of the lack of direct authority on this sort of issue, it is possible that a workable provision would need to be developed over time through careful experimentation. Finally, it should be pointed out that many cities that implement a venue licensing scheme do not extend any owner responsibility for conduct off of the business property.

Conclusion

If the Governing Body wishes to consider implementing an entertainment venue licensing scheme, I stand ready to draft an ordinance for discussion. For the sake of efficiency, answers to some of the questions posed above would prevent the presentation of an ordinance that grossly misses the mark when it comes to legislative intent. Please let me know if you have any further questions.

APPENDIX C

Memorandum

City of Lawrence

Legal Services

TO:	Toni Wheeler, Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	March 7, 2007
RE:	Draft Ordinance 8077 -- Entertainment Venue Licensing

Introduction

At the request of members of the City Commission, I am in the process of preparing a draft ordinance that would regulate entertainment venues within the City of Lawrence. The provisions of the ordinance are being drafted with two overriding goals in mind. The first goal is to provide the City a means to control entertainment venues that are operated or managed in a way that puts the public’s safety and well-being at risk or that squanders our public safety resources. The second goal is to provide that protection while interfering with the operation of businesses to the least possible extent when those businesses do not unacceptably harm the public interest. The draft ordinance will embody certain policy choices that were made in the drafting process, but each of those choices is subject to change if that is the will of the City Commission. The provisions of the proposed ordinance are merely a starting point for discussion.

Please note that the information contained in the outline is only a general summary of the key provisions of the draft ordinance and that the ordinance itself will address this subject matter much more precisely and extensively. In addition, the provisions are subject to supplementation and modification as the language of the draft is finalized. Please feel free to contact me with any comments that you might have.

An Outline of the Draft Ordinance

I. The ordinance’s application.

A. Applies to all entertainment venues that are open to the public, regardless of occupancy.

B. Entertainment generally means:

1. Any of the following if a cover charge, admission fee, minimum donation, product purchase requirement, or table or chair rental fee is charged: Recorded audio or video presentations. Examples might include recorded music, films, video presentations, etc.

2. Any of the following, whether or not there is an admission charge: Patron dancing, live music, or recorded audio presentations that are presented by a live disc jockey, DJ, or other announcer who introduces and/or moderates the presentation of that music.

C. Entertainment venues are for-profit businesses held open for use by some or all of the public. The term does not include properties owned by elementary or secondary schools, accredited universities, accredited professional or trade schools, governmental entities or bona fide not for profit organizations.

II. The licensing process.

A. Licenses will exist both for locations where entertainment is a continuing enterprise as well as those places where the entertainment is of a one-time or temporary nature.

B. License fees will purposefully be kept very low. The current intention is to establish the cost of licenses at $25 for a regular license and $5 for a temporary license. The regular licenses would be valid for a period of three years after issuance. Temporary licenses could be issued for no more than five days in any calendar year.

C. The license would be issued by the City Clerk. Disqualifying factors for licensure would include violations of the City’s fire code, development code, or a venue’s site plan; an applicant under the age of 18; an owner or applicant who has certain types of criminal history; or an owner or applicant who has had a previous license issued under the section revoked within the prior two years. If the licensee is an existing business, additional disqualifying factors include certain crimes such as prostitution or the distribution of controlled substances if they have previously occurred on the premises. In the event that a license cannot be issued within 10 days of application, a provisional license will be issued pending the completion of the investigative process. Provided no disqualifying factors are revealed in the investigative process, the City Clerk must issue a license.

D. The type or content of the proposed entertainment, as long as it is otherwise legal, is irrelevant in the licensing decision.

III. License violations.

A. Criminal violations or ordinance violations by patrons or employees on the premises.

B. Noise problems that affect the surrounding neighborhood.

C. An accumulation of trash or litter in the surrounding area.

D. Traffic flow problems, congestion, or appropriation of the surrounding right of way by customers, especially at the end of the entertainment event or at the venue’s closing time.

E. An increase in criminal conduct within the vicinity of the entertainment venue by patrons who are coming to, at, or leaving the entertainment venue.

F. The creation of any other condition that is injurious to the public’s health, safety and welfare when there is a direct causal connection between the existence of the entertainment venue and the harm.

G. Providing false information during the application process.

H. Becoming ineligible under any of the initial licensing conditions.

I. Failure to allow premises to be inspected.

J. Excessive use of public safety resources.

IV. Conditional licenses and license revocation

A. In the event that substantial license violations occur, proceedings may be initiated to revoke the license.

B. The proceedings will be held in front of the City Commission.

C. The City Manager or his or her designee will present evidence of violations.

D. Prior to revocation proceedings, if future violations of the same type could be prevented by a security plan, litter or crowd control plan, noise control plan, modification of closing times, or any other reasonable means, City staff shall propose a solution to remedy the problems. In the event that the licensee agrees to the conditions, he or she shall surrender his or her license and a conditional license will be issued for a period of ninety days which allows continued operation of the entertainment venue under the conditions agreed to. At the end of the ninety day period, if the conditions have satisfied the concerns, the term of the conditional license may be extended to the term of the license that was surrendered. If the concerns are not remedied, the parties may agree to additional conditions and the issuance of a new conditional license or may proceed to hearing on the violations.

E. After the hearing and upon a finding of violation, the City Commission may suspend or revoke the license. In lieu of suspension or revocation, the City Commission may offer a license for continued operation that shall be conditioned upon any reasonable measures to ameliorate or prevent continuing license violations. In offering this sort of conditional license the City Commission will consider the nature and extent of the license violations, whether conditions are likely to assist in preventing the problem and the cost generated by the imposition of the conditions versus the harm caused by the license violations.

V. It will be unlawful for a venue to host entertainment without a valid license when such a license is required by the ordinance. In the event that this provision is violated, the penalty is a fine of not more than $1000 or jail not to exceed 90 days or both.