Memorandum
City of Lawrence
Legal Services
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TO: |
Toni Wheeler, Director of Legal Services
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FROM: |
Scott J. Miller, Staff Attorney
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Date: |
August 7, 2007
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RE: |
Ordinance 8077 – Entertainment Venue Licensing |
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Rights of Inspection and Emergency Orders
Acts attributable to an entertainment venue
Substantial criminal activity per se
Licensing Actions and Hearings
Attached to this memorandum you will find Ordinance 8077, which establishes entertainment venue licensing in the City of Lawrence. Although similar licensing schemes from some other cities seek to exert control over a broader range of negative effects that may be associated with poorly organized or conceived entertainment venues, at the City Manager’s direction the regulatory focus of the proposed ordinance is largely confined to one subject – the public’s safety.
The policy choices made in drafting the ordinance attempt to impose no real burden on entertainment venues that do not pose public safety concerns. A regular license issued under the ordinance, which is effective for three years, costs $25. A temporary, or one day license, costs $5. There is no discretion involved in deciding whether someone obtains a license and no attempt to impose specific conditions or regulations on a licensee. Only after substantial criminal activity or other license violations related to public safety have occurred at a licensed business does the City have the power to take licensing action under the authority of the ordinance.
It is important to remember that the entertainment venue license is not a general business license. The only effect of not being licensed is that no entertainment, as that term is defined in the ordinance, may legally take place in the unlicensed venue. If the business is also a drinking establishment, for example, the drinking establishment may remain open and serve alcoholic beverages.
Please note that while I will attempt in this memorandum to explain the general concepts underlying the licensing scheme in an accurate and straightforward manner, each of the subjects discussed is dealt with more thoroughly and precisely in the ordinance’s language. As with any summary, this document should be considered a supplement to, and not a substitute for, a thorough reading of the ordinance.
Obviously, the first challenge in regulating entertainment venues is to define the scope of the entertainment that the City seeks to regulate. The vast majority of entertainment involves expressive conduct that enjoys some degree of protection under the First Amendment. Therefore, it is important that the regulations not discriminate based upon the message of the expressive activity. The intent of the proposed ordinance to be content neutral is found in Section 6-1601(B).
The ordinance regulates entertainment activities at entertainment venues, as those terms are specifically defined. Entertainment activities include:
· Recorded audio or video presentations, if any charges, fees or rents are collected to attend the activities.
· Live musical performances.
· Dancing by patrons on a dance floor or other area of a business where it is customarily allowed.
· Recorded audio that is presented by a disc jockey or other announcer who introduces or actively moderates the presentation of the recorded audio.
Entertainment venues are places where entertainment activities occur that are either open for the use of members of the public or are licensed as Class A or B private clubs under Kansas law. There are, however, several exceptions to the definition including property owned by schools or governmental units, entertainment activities sponsored by schools and governmental units, and activities sponsored by not-for-profit organizations as long as they are not held on the grounds of for-profit businesses. Because activities on the streets, sidewalks, and public rights of way are controlled by a different set of regulations, those activities are also excluded from the scope of the ordinance. In addition, educational and social activities including dance and music lessons, which are conducted in banquet rooms, classrooms or conference rooms are also excluded in most circumstances.
License application is made with the City Clerk. Each applicant must provide contact information for a registered manager, who shall be the person responsible for the day to day operations of the venue and the point of contact for the City. The applicant must be an owner or the registered manager of the proposed entertainment venue, but if the applicant is not the owner then the owner must provide a document granting the registered manager authority to request a license.
Upon application for a regular license, inspections by the Fire Department and Zoning Enforcement will be scheduled to ensure that the provisions of the fire and zoning codes will be met at the venue. There is no similar requirement for a temporary license, but temporary licenses may be issued for no more than five days in a calendar year. Unless a disqualifying factor is discovered during the processing of an application, a temporary license must be issued within three business days of the application, and a regular license must be issued within ten business days. In the event that the inspections or application review process cannot be completed in the time periods provided, a provisional license is issued. If it is later determined that the license application should be denied because of a disqualifying factor, the provisional license remains in effect for ten days following the notification of license denial so that the venue may wrap up their entertainment activities and attempt to minimize any financial loss.
Applicants and owners of entertainment venues must be at least 18 years of age to obtain a license. Reasons for license denial include an owner or applicant’s prior entertainment venue license revocation within the past two years, prior convictions for hosting an unlawful entertainment venue, prior felony convictions, prior controlled substance or weapons convictions, prostitution convictions, and certain misdemeanor convictions within the past year. The venue will also not be licensed if it fails the fire or zoning inspections or if the property has been declared to be a public nuisance within the past two years.
Rights of Inspection and Emergency Orders
Once licensed, entertainment venues are subject to inspection by the police and other City enforcement officials for compliance with the law at any time that they are occupied. This requirement is identical to the existing requirement that applies to liquor licensees under Kansas law. In addition, if the Chief of Police or his or her designee reasonably determines that the entertainment activities or patrons pose an immediate and substantial threat to the public safety or the safety of the patrons of a licensed venue, he or she may order the entertainment activities to cease until the threat has abated. An immediate and substantial threat is one that poses a substantial likelihood in the immediately foreseeable future that a breach of the peace resulting in injury to persons or damage to property will occur. This provision is designed to assist in addressing situations that may overwhelm law enforcement’s ability to respond such as riots, unlawful assemblies and mob action.
Providing false information during the application process, or the failure to allow an inspection or honor an emergency order to cease entertainment activities constitute license violations. Also, if something happens after licensure that would make the licensee ineligible to apply for and receive a license, the conditions of the license are violated. Further, if the owners or employees of the entertainment venue fail to take reasonable steps to prevent the use, distribution or possession of controlled substances on the venue’s premises when they know or reasonably should know of the criminal acts, this constitutes a violation of the terms of the license. The licensing condition that is primarily directed at ensuring the public’s safety, however, is the prohibition against substantial criminal activity.
Substantial criminal activity is generally defined as the level of criminal activity attributable to an entertainment venue that a reasonable person would determine poses a significant and disproportionate risk to the safety of the members of the public, patrons of the venue, or law enforcement officers. Not every person who is near an entertainment venue can commit acts that are attributed to that venue, however, and not every criminal act supports a finding of substantial criminal activity.
Acts attributable to an entertainment venue
Within an entertainment venue, only the acts of owners, employees, independent contractors, and patrons of the venue are attributable to that venue. For example, if someone burglarizes the business while it is closed, that act is not attributable to the venue. Also, outside the premises, acts committed by these same individuals are attributable to the venue if they are committed within 500 feet of the venue, provided that a primary purpose of the person’s being in the area at the time the crime was committed was attendance at the venue or traveling to and from it. The purpose of these limitations is to attempt to separate the acts that may result because the entertainment venue exists from other acts that are less logically connected to the existence of the venue.
Not every type of crime is considered in making license decisions under the ordinance. Instead, the crimes that are considered are those that either exhibit the most direct threat to the public’s safety and welfare or are types of crimes that are endemic to the areas in and near improperly managed entertainment venues. These crimes include:
1. Any crime involving the unlawful killing of another person.
2. Any criminal violation related to the unlawful distribution of controlled substances.
3. Any sex crime involving nonconsensual sexual activity or sexual activity of someone who is without the legal capacity to consent to such activity.
4. Any gambling offense occurring within or on the premises of the entertainment venue.
5. Any crime involving prostitution or the solicitation of prostitution.
6. Any crime involving brawling, physical violence, the threat of physical violence or rude, insulting or angry physical contact.
7. Any crime involving the intimidation of a witness.
8. Any crime involving the kidnapping or unlawful confinement of an individual.
9. Any crime involving intentional damage to the property of another.
10. Any crime involving the unlawful taking of property.
11. Burglary or aggravated burglary of any structure or vehicle.
12. Any crime involving the unlawful possession or use of firearms, explosives, or other weapons.
13. Crimes involving unlawful assembly, remaining at an unlawful assembly, or riot.
14. Unlawfully providing aid to a person who has committed or is committing a crime.
15. Any crime involving the interference with a law enforcement officer or firefighter in the discharge of his or her duties.
16. Any unlawful attempt to commit any of the crimes listed above.
It is obvious that not every crime that fits within one of these categories should be weighed equally. A murder, for example, generates much more concern that a simple theft and not every crime within a given classification necessarily has a similar effect on the safety of the public.
Substantial criminal activity per se
Under the ordinance the license violation of substantial criminal activity may be proven in two different ways. First, it may be proved under the general definition discussed above. A second way to establish that substantial criminal activity is associated with a club is through an accumulation over time of certain types of offenses.
Kansas law divides its felony offenses into a variety of different severity levels. Felonies are divided into person and nonperson categories, which are ranked as either off-grid or severity level 1 through 10. Drug and nondrug felonies are ranked on different scales. Drug felonies are ranked on a 1 through 4 severity scale. Misdemeanor violations range from something as small as a speeding ticket, which is a traffic infraction, to class A misdemeanors that are punishable by fines up to $2500 and jail time of no more than a year.
In an attempt to introduce an objective measurement standard, substantial criminal activity per se may be established by showing that the following number of attributable events have taken place in a period of 365 consecutive days. The definition is met when the number of criminal violations in any category reaches the proscribed level. Please note that each category in the chart also includes the representative offenses of the category above it. For example, two burglaries and one robbery would constitute substantial criminal activity.
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Severity Level |
Violations required |
Representative offenses |
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Off-grid or severity level 1, 2 or 3 felonies |
1 |
First or second degree murder, Voluntary manslaughter, Rape, Kidnapping. |
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Off-grid or severity level 1 through 5 felonies |
2 |
Robbery, Aggravated Battery. Indecent Liberties. |
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All drug or non-drug felonies |
3 |
Burglary, Distribution of Marijuana or Cocaine, Thefts of a value > $1000. |
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All felonies, and misdemeanors or city ordinance violations that carry potential jail sentences |
10 |
Battery, Disorderly Conduct, Interference with Official Duty, Criminal Possession of a Weapon. |
Licensing Actions and Hearings
Merely because a licensee has violated the terms and conditions of an entertainment venue license does not mean that the license is automatically subject to suspension or revocation. It does mean that the City Manager or his or her designee may elect to take licensing action. If the City Manager or designee decides that licensing action is in order, the City will send a notice to the entertainment venue detailing the alleged violations and its proposed licensing action. The actions available would be suspension for a definite period not to exceed one year, revocation, or issuance of a probationary license with added license conditions. The notice will include the right to request a hearing as well as the date that the proposed action will become effective if no hearing is requested.
A probationary license lasts for a year unless extended, suspended or revoked. It is premised on certain terms and conditions that are aimed at trying to reduce the public safety impact of the business in question. Although any term or condition that is reasonable, lawful and consistent with the purpose of the licensing scheme may be imposed, some relevant conditions may include the following:
(1) A requirement that the entertainment venue adopt a security plan including security staffing, training and procedural requirements.
(2) A requirement that the entertainment venue make infrastructure improvements aimed at increasing the safety of the venue including, but not limited to, the installation of lighting, security cameras, or magnetometers.
(3) A requirement that the entertainment venue only admit or allow the attendance of those individuals 21 years of age or older while entertainment activities are taking place.
(4) A provision limiting the days of the week or the hours of the day that entertainment activities may take place.
(5) A requirement that the entertainment venue provide a reasonable monetary reimbursement to offset the expense of providing extraordinary levels of law enforcement response to the entertainment venue.
(6) A provision allowing for periodic review and modification of the conditions of the probationary license.
(7) A provision requiring the entertainment venue to obtain sufficient identification from each of its customers prior to their admission to entertainment activities.
If the terms of the probationary license are successfully complied with, after its expiration a new regular license may be issued.
In the event that the licensee does not agree with the proposed licensing action, it may request a hearing before a licensing action hearing panel. The panel consists of two members of the entertainment venue license board and one volunteer entertainment venue licensee. The entertainment venue license board consists of five members appointed annually by the Mayor and approved by the City Commission. Each entertainment venue licensee will have the opportunity at the time of license application to volunteer to serve on these hearing panels. The panel members will be chosen randomly in each case from those eligible to serve.
At the licensing action hearing, the City Manager or his or her designee presents evidence of the violation, which must be proven by a preponderance of the evidence. In the event a licensing violation is established, the hearing panel decides what, if any, licensing action is appropriate in the individual case. It may select any remedy that is available under the ordinance whether the action is more or less stringent than the City Manager’s recommendation.
Licensing action hearings may also be held on temporary licenses, even if the event that was licensed has already taken place. The purpose of the hearing is to determine whether the license should be rescinded. Anyone whose temporary license is rescinded is prohibited from obtaining a new temporary or regular entertainment venue license for two years after the licensing action.
The City Commission hears the appeals of those who are denied licenses by the City Clerk. Also, if either the City Manager or the licensee is aggrieved by the decision of a hearing panel, that party may appeal the hearing panel’s decision to the City Commission. The appeal is de novo – the hearing board’s decision is given no deference. The City Commission hears evidence of the violation and upon finding of a violation by a preponderance of the evidence takes any action it determines is appropriate from the menu of those actions lawfully authorized by the ordinance. Pending the hearing with the City Commission, which must be held rather quickly after the filing of the appeal under the terms of the ordinance, the licensee is allowed to continue its entertainment activities.
It is unlawful for an entertainment venue to host entertainment without a license. In the event that any venue does unlawfully host such entertainment, the owners and manager or supervisors are held criminally responsible, as is anyone who organized the entertainment knowing that the venue was unlicensed. If no owners or managers are identifiable, then any employee of the venue may be charged. The potential penalty for a violation is up to $1000 in fines and not more than 90 days in jail.
The proposed ordinance is nothing more than an illustration of one set of policy choices that may be made. While every attempt was made to craft a fair ordinance with sufficient checks and balances, it may easily be made more or less stringent. Its application could be broadened or limited. Penalties could be reduced or enhanced.
Please let me know if additional work is necessary. I stand ready to help.