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HomeMy WebLinkAbout96-87 - Tily B. Inc Live Entertainment Appeal• RESOLUTION NO. 96- 87 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE CITY OF NEWPORT BEACH ADOPTING THE DECISION AND RECOMMENDATION OF THE HONORABLE JUDGE LLOYD E. BLANPIED, JR. REGARDING THE APPEAL OF THE REVOCATIONINOW RENEWAL OF THE LIVE ENTERTAINMENTIADULT ORIENTED BUSINESS PERMIT OF TILY B, INC., A CALIFORNIA, CORPORATION, DBA THE MERMAID WHEREAS, on April 14, 1995, the City Manager issued an Adult Oriented Business Permit to Appellant, Tily B, Inc., a California Corporation dba the Mermaid ( "The Mermaid ") pursuant to the provisions of Chapter 5.96 of the NewDD rt Beach Municipal Code; and WHEREAS, on March 15, 1995, the City of Newport Beach issued a live entertainment permit to The Mermaid pursuant to the provisions of Chapter 5.28 of the Newport Beach Municipal Code; and WHEREAS, on or about February, 1996, The Mermaid commenced the operation of a restaurant with live adult oriented entertainment; and WHEREAS, on March 20, 1996, the City Revenue Manager notified The Mermaid that the business was providing the live adult oriented entertainment in violation of various conditions of Chapter 5.28 and 5.96 of the Newport Beach Municipal Code. The Mermaid failed to correct the violations; and WHEREAS, on April 12, 1996 the City Manager for the City of Newport Beach issued a Notice of Revocation of the live entertainment permit and nonrenewal of the adult oriented business permit based upon violations of various provisions of 5.96 and 5.28 of the Newport Beach Municipal Code; and WHEREAS, the Mermaid filed its appeal of the decision of the City Manager on April 26, 1996, and thereafter the City Council referred the appeal to a hearing officer to conduct a public hearing. A public hearing was held before the Honorable Judge Blanpied, Jr., (retired) on July 5, 1996 and on August 16, 1996. The Mermaid was 1 Res. 96 -87 represented by Ronald Talmo, Esq. The parties submitted full briefing on the issues raised in the appeal and presented witnesses and other documentary evidence; and WHEREAS, on October 4, 1996, Judge Blanpied issued his Decision and Recommendation which is attached hereto as Exhibit "A" and incorporated herein by • reference; and WHEREAS, the City Council has reviewed the Administrative Record in this matter and adopts the findings of Judge Blanpied which include but are not limited to the following: 1. The Mermaid stipulated and the evidence demonstrated that nude entertainment was permitted to be performed in areas other than on a raised stage and within six (6) feet of patrons. 2. The Mermaid stipulated and the evidence demonstrated that patrons at The Mermaid were providing and entertainers, as that term is defined in Newport Beach Municipal Code Section 5.28.010, were accepting direct hand -to -hand tips. 3. The Mermaid stipulated and the evidence demonstrated that The Mermaid has restrooms which by law are required to allow more than one person in at a time but has not provided a restroom attendant. 4. The evidence demonstrated that entertainers in "bikini tops and g- strings" and fully nude entertainers at The Mermaid touched patrons and allowed patrons to touch entertainers while performing "lap dances" or "table dances" in the manner described in the police reports submitted into evidence as Exhibits E -J, inclusive; and WHEREAS, each of the above described activities is sufficient to revoke and /or deny renewal of The Mermaid's Live Entertainment Permit and Adult Oriented Business Permit. lI u 2 • • Res. 96 -87 NOW, THEREFORE, the City Council of the City of Newport Beach acknowledge receipt of the full administrative record and transcript of the public hearing before Judge Blanpied, Jr. and having reviewed his October 4, 1996 Decision and Recommendation hereby deny the appeal, uphold the April 12, 1996, Notice of Revocation by the City Manager and adopt the Decision and Recommendation of Judge Blanpied as the decision of City Council. Adopted this 28th day of October 1996 ATTEST: F Acat \debbie\resolut\tilyb. doc 10 -08 -96 MAYOR CITY CLERK .f I' F Acat \debbie\resolut\tilyb. doc 10 -08 -96 MAYOR 4 < • 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 211 27 28 HON. LLOYD E. BLANPIED, JR. (RET.) J•A•M•S /ENDISPUTE 500 N. State College Boulevard Suite 600 Orange, CA 92868 (714) 939 -1300 HEARING OFFICER IN RE THE APPEAL OF THE REVOCATION /NON - RENEWAL OF THE LIVE ENTERTAINMENT /ADULT ORIENTED BUSINESS PERMITS OF TILY B., INC., a California Corporation, d.b.a. THE MERMAID TILY B., INC., a California Corporation, d.b.a. THE MERMAID, Appellant, V9. CITY OF NEWPORT BEACH, Respondent. BEFORE THE HONORABLE LLOYD E. BLANPIED, JR., HEARING OFFICER DECISION AND RECOMMENDATION TO THE HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH: BACRC-10VND The hearings on this appeal were held on July 5 and August 16, 1996, at the Newport Beach City Council chambers. Present on behalf of Appellant, Tily B., Inc., d.b.a. The Mermaid, (hereafter "Appellant ") was attorney Ronald Talmo. Representing the City of Newport Beach, the Respondent, (hereafter "City" or "Respondent ") was attorney Jeffrey A. Goldfarb, of Rutan & Tucker. After the last hearing, a time was set by stipulation for the filing of closing argument briefs. Since they were filed, the Hearing Officer has been reading and considering the 1 2 lengthy opening and closing briefs, the numerous exhibits submitted, reviewing his notes and the written transcripts of the 3 two hearings, and legal authorities cited by the parties. The 4 Hearing Officer now renders his Decision and Recommendation. 5 It is the Decision and Recommendation that the appeal should 6 • be denied, and the determination of City that the live 7 entertainment permit previously issued to Appellant be revoked 8 and that renewal of its adult oriented business permit be refused 9 should be affirmed. 10 11 For convenience of the City Council and its representatives and of counsel for the parties, attached to this Decision and 12 Recommendation are Exhibits "A" and "B ". Exhibit "A" is a copy 13 14 of the City of Newport Beach's letter of April 12, 1996, to Appellant wherein revocation and refusal actions are taken. This 15 exhibit describes specific violations as to Newport Beach 16 Municipal Code sections with detailed descriptions of the conduct 17 1s involved. (References to "couch dances" are not dances on 19 couches, but rather dances performed in one of the open booths 20 where a male patron is sitting. The femnale dancer is either 21 wearing a thong -type bikini, but more recently is nude. She 22 dances on the legs and lap of the patron.) On unnumbered page 5 23 of the exhibit under III, the charge in the bottom paragraph 24 concerning section 5.,96.025 has not been asserted in the appeal 25 by City. Exhibit "B" is the appeal filed by Appellant. Nine 26 grounds are asserted. It is the Decision of the Hearing Officer 27 that Appellant did not prevail on any of the grounds. 28 2 • 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20I21 0111 DISCUSSION The facts as to the code violations, except in one instance, were not disputed. Appellant admitted that dancers danced closer to patrons than the required six foot buffer zone; that although prohibited, there was touching between dancers and themselves and with other dancers and with patrons; that the latter handed tips directly to dancers, and that no restroom attendant is stationed in the restroom at The Mermaid. The sole disputed incident is the one at the bottom of unnumbered page three in Exhibit "A" involving an entertainer named Ave who allegedly removed part of her bikini top and permitted the described conduct. Ava testified at the hearing that she would never permit such activity because doing so would "gross her out." An undercover police officer testified that he observed the conduct, and that it lasted approximately 45 seconds. It appeared to the Hearing Officer that his testimony was more credible than hers. It also appeared that entertainers only get paid by tips, and tips are received from appreciative patrons. The main defense to the alleged, and admitted, offenses on the Dart: of Appellant is that the regulations reflected in the various code sections put an unconstitutional restriction on the dancers' right of free speech, that is, their right of self - expression in dancing. It is also contended that the regulation requiring bathroom attendants invades the constitutional right of privacy of patrons using the bathrooms. In addition, Appellant asserts that the restrictions in Chapter 5.28.041 (that regulate touching, the six -foot buffer zone, etc.) in addition to violating rights of free-speech also violate the constitutional 3 1 2 3 4 5 • 6 911 10 11 12 13 14 15 16 17 18 211 27 ( right of equal protection under the law because the regulations are allegedly directed to this type of entertainment merely because of its nature; that the City really wants to put this type of entertainment out of business. Appellant objects to the regulations on the grounds that they are vague and overbroad. There are other assertions in the nine grounds of appeal. The Hearing Officer considered all of the grounds of appeal, other points raised in briefs, all of the evidence both oral and documentary, the legal authorities cited by both sides and the written argument of counsel. The overwhelming conclusion is that the grounds of appeal and other points raised in the brief of Appellant do not have merit. City clearly established that the regulations pertaining to live entertainment and adult - .oriented business were not unconstitutional and that some similar and identical provisions had been upheld by the courts. Under the law, regulations effecting free speech, such as nude dancing, are permissible so long as the regulations are not aimed at controlling the self- expression, i.e., the nude dancing, but rather the secondary effects that might result from it. For example, direct hand to hand tipping might facilitate passing drugs, and arranging for acts of prostitution. Getting closer to a dancer than six feet and touching could facilitate the above and the passing of body fluids and disease. The City established that the reason for bathroom attendants is not to interfere with the adult entertainment but to prevent acts of prostitution. All of the violations in Exhibit "A" were proved at the hearings. The evidence proved that the.regulations are not vague or 4 1 2 4 5 • 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 91 overbroad, because they satisfy the legal requirement that an ordinary person exercising ordinary common sense can sufficiently understand and comply with the requirements. Appellant cited no authority finding the regulations of City to be unconstitutional, and endeavored to show the legal authorities cited by City to be inapplicable. However, the position of City was well supported by the applicable law. Other grounds for appeal and objections were raised by Appellant in its brief. All of them will not be discussed herein. However, they were all considered and found to be without merit. In one, it was argued that because of inaction by City on a November 17, 1993 permit application, under the law, Appellant became a licensee before Ordinance 94 -7, the ordinance amending Chapter 5.28, came into effect. This being so, under the argument, the regulations in Chapter 5.28 do not apply to Appellant. However, as shown by City, the authority cited by Appellant does not support its position, and the evidence and other authority supports the position of City. Another contention of Appellant was that it had been subjected to discriminatory enforcement of City's laws, and was treated differently than others similarly situated. This is a claimed violation of Appellant's right to equal protection under the law. However, Appellant was not able to support this contention. There was no discriminatory enforcement of the zoning laws. Appellant's expert witness on the zoning issues was Robert Schultz. City demonstrated that his report was flawed and that he was unqualified to give his opinion as to zoning violations on the part of other businesses in the same or other areas. City 5 1 2 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 27 28 also produced evidence that complaints about non - conforming uses under the code are investigated and processed under the code enforcement program. The weight of the evidence failed to prove that Appellant was subjected to unequal treatment under the zoning laws or otherwise by the City of Newport Beach. CONCLUSION In conclusion, it is respectfully submitted that the appropriate resolution of the appeal by Appellant, Tily B., Inc. d.b.a. The Mermaid, from the City's revocation of Appellant's live entertainment permit and its refusal to renew Appellant's adult oriented business permit is for the City to deny the appeal and to affirm the revocation and refusal to renew. DATED: October 2, 1996 6 ; U Judge Irloyd E. Blanp' anpi66dd, , Jr (Ret.) Hearing Officer 11 RC<• !i',':..1'T.4 & 'r1iCK1 -:R 6- 5 -96 :11.:26AM 714- &1-43139-. RUTAN & TUCKGR. CM, :� . UtY` J'bU I11 04 Vlll RI IVIS11L1 frill NV, fi4U44J1JU 1'. UG i CITY OF NEWPORT BEACH (714) 644 -3000 via facsimile (714) 446 -0707 • April 12, 1996 Marc Lebovitz, Esq. 407 West Imperial Highway, Suite H -200 Brea, CA 92621 RE: THE MERMAID APPLICATION Dear Mr. Lebovitz: We are in receipt of your April 8, 1996 letter. We disagree with your assessment that your client's adult oriented business permit has been renewed for the simple reason that 15 days has passed since your application was submitted to the City. Status of Adult Oriented Busi�ss Permit Application A�lication Newport Beach Municipal Code ("NBMC ") Section 5.96.25 states: "City Manager shall issue an adult oriented business permit within 15 days of a complete application if he /she finds that the application fully complies with the findings /requirements of this section,' You submitted your client's application to the City on March 21, 1996. As evidenced by the City's April 4, 1996 letter to you, your client's application was incomplete because it lacked the requisite floor plan jiursuant to NBMC Section 5.96.0200 and a statement explaining ;':,•ry t`:e business intends to operate under the renewed permit in compliance with zoning and iocational requirements. - This information, which was previously supplied to the City in your client's February 7, 1995 application packet, was missing from your March 21, 1996 submittal. In your April 8, 1996 letter you have provided the City with the information the City requested in its April 4, 1996 notice that your client's application was incomplete. Specifically, you state that... "The previously submitted final floor plan and any previously submitted documents which were considered with the 1995 permit application are incorporated by reference, For your Information, the 'grotto booth' is now for employees only." Because your client's February 7, 1995 permit application states how it believes the business will comply with the zoning and locational requirements as required under NBMC Section City Hall • 3300 Newport 13aulevard ► P.O. Bex 1768 • Newport Beach, California 92659 -1768 RCN' BY %RUTAN & TUCKUN : 6- 5 -96 : 11 =27AN 7146 43139, RUTAiN & TUCKER, CM. : N 3 JUtl- J"-OU NCU il• aU W 1 if ni Iuami rnQ IYU. I14U44J1J0 T. UJ 5.96.025A and includes the requisite floor plan, the application is' now complete. II. H!2vocatipa of Live Entertainment Permit ({chapter 5.28) Pursuant to NBMC Section 5.28.060, the City Manager may revoke a live entertainment permit for any of the following reasons: "A. The•permittee has ceased to meet the requirements for issuance of a permit; B. The applicant gave materially false, fraudulent or misleading information on'the application; C. Music or noise from the establishment for which the permit was issued interferes with the peace and quiet of the neighborhood; D. The permit holder is convicted of a felony or a misdemeanor occurring upon, or relating to the premises or lot upon which the place of entertainment is located, which offense is classified by the state as an offense involving sexual crime against children, sexual abuse, rape, distribution of obscene material or materially harmful to minors, prostitution or pandering, including, but not necessarily limited to the violation of any crime requiring registration under Californla Penal Code Section 290 or any violation of Penal Code Sections 243.4, 261, 261.5, 264.1, 266, 266A through 266K, inclusive, 267, 286, 286,5, 288, 288a, 311 through 311.1 0,. inclusive, 314, 315, 316 or 647; E. If on two or more occasions within a 12 month period, a person or persons has been (have) convicted of a felony or misdemeanor for an offense set for the in Subsection (D) above as the result of such person's activity on the premises or property on which the place of entertainment is located, and the person or persons were employees, contractors or agents of the place of entertainment at the time the offenses were committed; F. If the permit holder or an employee has knowingly a[k)weu prostitution, or solicitation for prostitution, on the promises; or C. The place of entertainment has been operated in violation of any of the requirements of this chapter." On March 20, 1996, the City provided your client with a warning letter to inform it of various violations of NBMC Chapters 5.28 and 5.96 which were occurring on the property at 4248 Martingale Way in the City of Newport Beach (the "Property "). Recent inspections of the Property indicated that these violations have not ceased. Specifically, the following violations have. been observed on the Property: KC1 BY:RU1:4:\ & TVCKEK %WW "WOU "tV I1•J6 : 6- 5 -06 :11:20AM V l l l 111 1 URIT(: I 7146448139-. RUTAN rftA 11U. 114U44J1J0 & TUCKER. CAI.: # 4 r. U4 On February 9., 1996, at approximately 9:00 p.m., an entertainer going by the name of either Bobbie or Cinnamon was observed performing a couch dance and rubbing her groin on a patron's leg in violation of NBMC Sections 5.28.041 A, B, D and L. On February 23, 1996, nude entertainers were observed on stage performing within six feet of patrons in violation of NBMC Section 5.28,041 D, In • addition, nude entertainers were observed performing couch dances for patrons within six feet of. the patron in violation of NBMC Section 5.28.0410. Furthermore, entertainers were observed performing couch dances for persons, which included straddling and touching the patron in violation of NBMC Sections 5.28,041D and L. Finally, an entertainer was observed on stage accepting a hand -to -hand tip from a patron in violation of NBMC Section 5.28,0410. ©n February; 24, 1996, at approximately 9:40 p.m., entertainers going by the name of Shane, Crystal, Diane, Star, Rachel, and India were observed performing nude do -stage within six feet of patrchs in violation of NBMC Section 5.28.04;1 D, In addition, entertainers were observed performing couch dances for patrons in a manner which included straddling and touching the patrons in violation of NBMC Sections 5.28.041D and L,. On that same:day, an entertainer was observed accepting a hand -to -hand tip from a patron in violation of NBfv1C Section 5.28.041A. On March 1, 1996, at approximately 7:00 p.m., nude entertainers using the names Amber, Crystal, Diane, Star, Rachel, India, Chris, Nicki, and Dante were observed on stage hanging their legs, arms, head and feet over the edge of the stage within six feet of patrons in violation of NBMC Section 5.28.041 D. An entertainer using the name Nicki was also observed performing totally nude couch dances within six feet of patrons in violation of NBMC Section 5.28.041 D. Entertainers using the names Rachel and Nicki were also observed performing couch dances for patrons which involved physical contact In violation of NBMC Sections 5.28.041D and L. Entertainers were further observed straddling and touching patrons in violation of NBMC Sections 5.28.041A and .B,' tit addition, entertainers usldg the names Star and Amber were observed accepting a -hand- tc-hand tip from;a patron in violation of NBMC Sections 5.28.041 D and 0. On March 2,' 1996,. at approximately 5:45 p.m., nude entertainers were observed coming into physical contact with patrons' tables in violation of NBMC Section 5.28,041D. An entertainer using the stage name Ave was observed removing her top and permitting a customer to suckle on her breast in violation of NBMC Sections 5.28.041A, B, D and L. She was again observed with another customer pressing her breast against the sides of the customer's head in violation of NBMC Sections 5.28.041A, 8, D and L. On that same day, an entertainer using the name Nicki was observed accepting hand -to -hand tips from customers while dancing on stage in violation of NBMC Sections 5.28.041 D and 0. RC% t4Y':RLTAN & TUCKER JuIY- a'ou "ru 11.J1 : E;- 5 -9G :11:29AM V111 M IUAIMI r 7116+43139, RUTAN r 1111 1W. 1 14u44J 100 & ' rUCKER. 01.: q 5 r. Vu On March 22, 1996, at approximately 3:00 p.m., entertainers going by the names of Monique and Desiree were observed accepting hand -to -hand tips from customers in violation of NBMC Sections 5.28.041D, L and Q. On that same date, entertainers going by the names Selena, Lydia, Monique and Desiree were observed performing totally nude less than six feet from customers in violation of NBMC Section 5.28.041D. Furthermore, entertainers going by the names Lydia and Desiree were observed totally nude sitting on the .laps of customers, putting their arms around customers, and kissing customers in violation of NBMC Sections 5.28.041D and L. On that same date, an entertainer going by the name of Lydia was observed sitting in a male customer's lap, 'rubbing her breasts in his face, standing on his legs, thrusting her pubic area within two or three inches of. his face, and rubbing his crotch with her hand in violation of NBMC Sections'5.28.041A, B, D, and L. On March 29, 1996,.at approximately 19:25 p.m., entertainers going by thQ names Nicki, Crystal, Alicia, Star, Rachel, Erika, and Dante were observed dancirig naked Within six feet of patrons in violation of NBMC Section 5;�8.041D.. This included the entertainer named Nicki kissing a male patron seated alongside the stage in violation of -NBMC Section 5.28.041L and. Nick! and Star dangling their feet off the edge of the stage and touching the patrons' legs who were seated alongside the stage, again in violation of NBMC Section 5.28.041L. On this same date, entertainers going, by the names Nicki, Crystal and Erika-were observed performing totally nude couch dances for male patrons within six feet of these patrons in violation of NBMC Section 5.28.0410 On April 3, 1996, at approximately 3:30 *p.m,, an entertainer going by the name Tahlia was observe'd to be engaged in a nude dance while dangling her hair in a customer's face while holding her breasts.within 12 inches of the customer's face: in violation of NBMC Section 5.28.041 D. An entertainer using the name Monique was observed to be engaged in a nude dance during which time she hugged and kissed a customer while soliciting the customer for a totally nude table dance for $40 in violation of NBMC Sections 5.28.041 D. and L. An entertainer going by the name Lydia was observed to be engaged in a nude dance within six feet of a customer in violation of NBMC Section 5.28.041D. In light of the continued pattern of violations and the fact that the violations continue to occur after notification from the- City of the existence of the Aotations, I have determined that your client has failed to meet the requirements for the issuance of its live entertainment permit in violation of NBMC Section 5.28.060A and has operated its place of entertainment in violation of the requirements of NBMC Chapter 5:28. Therefore, pursuant to NBMC Sections 5.28.060A and G, your client's live entertainment• permit is herel revoked. Each of the aforementioned vioiafflbns is an independent Basis-6r my Ueci an: Pursuant to NBMC Section 5.28.070, your client has the right to appeal this action within 15 days following the date listed above. The City Council shall hold a hearing within 20 days of receipt of a notice of appeal and shall render a decision on the appeal within five days of the date of that hearing. As is always the case, the revocation of your client's permit will be stayed until either the RCV 13Y.:RUTAN & TUCKER : 6- 9 -9E3 :11:29AM 71464.4.3139-. RUTAN & TUCKER. CM. :H 6 JuIY- J -ou WCU 11•JU filll MIVRnL:I rnn I1u. Il4U4401JJ Ll UU expiration of the 15 day appeal period if no appeal is received or, if an appeal is filed, until such time as the City Council makes its determination of the appeal in order to preserve the status quo pending final decision. Ill. Renewal of Adult- Oriented Business Permit (Chapter 5.96, •NBMC Section 5.96.035 states that, °Any change or alteration in that nature or operation of the adult- oriented business will require the renewal to be reviewed by the City Manager." In addition, Section 5.96.045B states that, "The City Manager may revoke an adult oriented business permit when he or she discovers that any of the following have occurred: 1. Violation of or failure to comply with any of the findings /requirements contained in Section 5.96.025 has occurred; 2. It is discovered that the application contains incorrect, false or misleading information; 3. The applicant is convicted of any felony or misdemeanor which is classified as a sex or sec - related offense, or has been found to be in violation of the City's zoning ordinance, any violation of the City's message ordinance, or any violation of any other adult business ordinance of any other city, county or state; 4. Any person has been convicted of a sex - related offense as the result of his or her activity on the premises of the adult- oriented business; 5. There has occurred on the premises a violation of any provision of Section 5,28.041." On March 1, 22,'24, and April 3, 1996, it was observed that the restrooms on the premises allow for more than one person to occupy the restrooms at any one time but that no restroom attendant v:as provided in violation of NBMC Section 5.96.025L. In addition to the above, Si,- ,to,i 11 of this letter explains Vie many violations of NBMC Section 5.28.041 that have been observed on your client's Property. Those violations are incorporated herein by this reference as If set forth In full.E NBMC Section 5.96.025A requires the adult- oriented business to be located In an approved zoning district in compliance with the zoning and locational requirements of Chapter 20.74 of this Code. Based up[on information received by the City, your client's establishment is not a place of business with the principal purpose to sell or serve food products and beverages for consumption on the premises within a building consisting of a permanent structure that is fully enclosed with a roof and walls. Inasmuch as the Property upon which your client is operating its business is In a zone for restaurant uses only, your client fails to satisfy the requirements for the zone in which it is located. RCV.BY:KLTAN & TUCKL•:R. Jull' 'J -OU WL'U 11 -JO : FS- 0-96 :11::3UAM : 7146443139-. RI�rAN & TUCKER. CM. :0 7 V11! ❑IIUR13L1 rnn 1711. 114U44J:J0 r. vi For each of the foregoing reasons, I find that your client is in violation of NBMC Sections 5.96.045B1 and B.S. For each of these reasons, pursuant to NBMC Section 5.96.035, your client's adult oriente sines__ s n_erm_it shall not be renewed. Each violati n in epenffent basis for my decision. ursuan fov1C`5ection 5.96.0450, your client may appeal this decision to the City Clerk within 15 calendar days of this notice. Upon receipt of the notice of appeal, the City Clerk shall schedule an appeal hearing before the City Council •which shall be held not later than 45 days from the date the appeal Is received by the City Clerk. The City Clerk shall determine whether grounds for revocation of the adult oriented business permit exists and shall render his/her decision at the conclusion of the hearing. As is always the case, this revocation and non - renewal shall be stayed to preserve the status quo pending either 15 days after the date of this notice, if no appeal is received, or, if an appeal is received, upon the City Council's rendering of its decision. Sincerely, G Kee in J. Mur y City Manage cc: An Nguyen The Mermaid 4248 Martingale Way Newport Beach, CA 92660 RCV 'B1'CKU•CAN & TUCKER : 6- 5-96 :11:31ANI : 714649$139+ RUTAN & TUCKER. CA. :N 8 Juil- :, -JU WLV 11•ao V11 nl 1un"r1 rnn IYV. 114u4401J.7 r.uo PROOF OF SERVICE BY MAIL (CCP§ 1013A, 2105.5) IN RE: Mermaid 1. I declare that I am a citizen of the United States, that I am employed by the City of Newport Beach, that I am over 18 years old, that my business address is 3300 Newport Blvd., Newport Beach, California and that I am not a party to the within action. 2. I served the wit,h,i,n. r APRIL. 12,, 1996, 'J,4TTF.,R FROM KEV:M M - PHY, C],# k1kNAGER, TO MARK LIEBOS�ZTZ, ESQ., REGARDING THE MERMAID APPLICATION on the,perpon(s).;gamed below by sending a true;• copy • thereof azia�essed as shown: ;1Selow AND.'. ' placing ,*paid envelope (s) for da;1e'c'tion and. ' mailing•;op the da".. and at the pl�ce.`shown..in*, , item 3,-,-by depositing the correspondence with•..• the United States Postal Service'.xn a sealed: envelope with postage.fully prepaid... 1 3,•, a. :1?ATE, OF DEPC��ZT:a. April 12v 1296 ; ti b. PEACE OF DEP8Py T. Newport Beach, Calitz?xnia I declare under penalty,,of perjury under the laws of.;the State bf California that,the foregoing is true :and..correct. ''•, EXECUTED on this 12th day of April, 1995, at Newport Beach, California. Signature:, Robin Clauson City of Newport'heach Mr. An D. Nguyen The Mermaid 4248 Martingale Way Newport Beach, CA' 92660 r: FROM Judge Lloyd E. Blanried, Jr. PHONE NO. : +714 498 1191 • Oct. 01 19% 11:37AM P2 1 RONALD TALMOy ESQ. BAR NO. 78376 '2415 N. Hesperian 2 Santa Ana, CA 92706 dPR 26,1996 3 rK (714) 543 -1294 �°1B 4 Attorney for Appellant, TILY B. INC., dba THE M18iATq r ' 5 AN NGUYSN 6 y NOTICE OF APPEAL OF DECISION TO REVOKE B LIVE ENTERTAINMENT PERMIT AND 9 NOTICE OF APPEAL OF DECISION NOT TO RENEW to ' ADULT ORIENTED BUSINESS PERMIT it 12 13 TO THE CITY CLERK: 14I PLEASE TAKE NOTICE that An Nguyen hereby appeals the recent + 151 decisions of Kevin Murphy, the City Manager, to revoke the live •16 entertainment permit and to deny the request for a renewed adult 17 oriented business permit for Tily B. Inc., dba The Mermaid. l'B The grounds for the appeal are as follows: i 19 1. The City's regulations of live entertainment and 20 adult oriented businesses allow an unconstitutional level of II 21 discretion in city administrators both facially and as applied. 22 2. The reasons asserted in Mr. Lebovitz's April 8, 23 1996, letter to the City which are incorporated herein. Basically, 24 the application for renewal was complete and the City failed to act i 25 in a timely manner. 26 3. The process of revocation and renewal does not 27 comport with state and federal procedural due process guarantees in 28 that the City does not provide an adequate hearing process in which 1 FROM Judge I • 1 2 3 41 51 • 7. 8 91 10I 11 12 13 14 15 1.6 17 1 ft 19 20 211 22 23 24 25 26 _loyd E. Hlanpied, Jr. PHONE NO. : +714 498 1191 Oct. 01 1996 11:37RM P3 meaningful digoovery exists whereby the moon. is madw awaro eF,; all the evidence received and ultimately relied upon by the City in its determinations. This failure to notify the licensee of this.) evidence deprives the licensee of a fair hearing. 4. The factual assertions in the City's denial /revocation letter concerning all the activities of the entertainers assert activity protected by the free speech protections of the federal and state constitutions. S. The Code sections relied upon to supposedly regulate the speech of the entertainers are void for vagueness and thug present a prior restraint both facially and in their uneven application to specific entertainers. 6. The restroom attendee requirement violates the federal and state constitutional privacy rights of the licensee's patrons. 7. The definition of restaurant as a place of business with the principal purpose to sell or serve food products and beverages is void for vagueness both facially and as applied to this licensee. it is thus a prior restraint of the licensees free i speech rights under the federal and state constitution. 8. The revocation and renewal denial letter does not comply with statutory and common law requirements regarding the sufficiency of the findings of fact and the sufficiency of the conclusions reached from those facts. 9. The City's zoning requirements for adult oriented businesses that provide live entertainment violate the state and 2711 federal free speech rights of the licensee in that there are an 28 insufficient amber of locations if any at all in which the 2 FROM Judge Lloyd E. Blanpied, Jr. PHONE Fll1. : +714 498 1191 Oct. 01 19% 11:38M P4 1 licensee may operate a live entertainment businesh ii 'tfioii TaeU 2 saddled with the additional restaurant requirement. 3 4 DATED: April 26, 1996 t-- RONALD TALMO 5 Attorney for Appellant 6 7. it 8 91 to 1.1 12� 13 14 15 16 17 18 191 20 21 22 23 24, 25 26 27 28 :ff I n 3 4 FRi]M • Judge Llo%Al E. Blanpled. Jr. PHONE NO. : +714 498 1191 Oct. 01 19% 11:3am PS 1 PROOF OF SERVICE BY MAIL - SECTION 1013A, SECTION' 26IS. bt!kj O `! STATE OF CALIFORNIA, COUNTY OF RAN E 2 1 Corinne Talmo, am a resident of the county 3 aforesaid; I am over the age of 18 and not a party to the within action; my business address is 505 South Main Street, Suite 720, 4 Orange, California 92660. 1. 5 On April 26, 19960 I served the foregoing document described as NOTICE OF APPEAL. I served the interested parties in 6 this action by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States: I mail at Santa Ana, California addressed as.follows: 8 CITY CLERK CITY OF NEWPORT BEACH ' 9 3300 Newport'Boulevard 10 Newport Beach, CA 92659 I I 11 { ) BY MAILt I placed such envelope for deposit in the U.S.-Mail for service by the United States Postal Service, with postage 12 thereon fully prepaid.' 13 I am "readily familiar" with the'firm's practice of. collection and processing of correspondence for.mailing. Under 14 that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at 15 Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed 16 ynvalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in this affidavit.•• 17 Ilq (X ) BY PERSONAL SERVICES I caused such envelope to be delivered 18 by hand to the office of the addressee. 19 (X) STATE: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 20 ( ) FEDERALS I declare under penalty of perjury that the 21 foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the 22 service was made. 23 Executed on April 26, 1996, at Santa Ana; 24 California 25 26 CORINNE TALMO 27 28 PROOF OF SERVICE BY MAIL I, Monica Bowen, not a party to the within action, hereby that on October 3, 1996 I served the attached DECISION •declare AND RECOMMENDATION on the parties in the within action by depositing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States Mail, at Orange, CALIFORNIA, addressed as follows: Jeff Goldfard Esq. Ronald Talmo Esq. Rutan & Tucker 611 Anton Blvd. 2415 N. Hesperian Suite 1400 Santa Ana, CA 92706 1294 Costa Mesa, CA 92628 Robert Burnham Esq. City Attorney's Office - Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92659 I declare under penalty of perjury the foregoing to be true: and correct. Executed at Orange, CALIFORNIA on October 3, 1996. Signature