§ 5.72.200. Downtown Dining and Entertainment District.

The Downtown Dining and Entertainment District (the "DDED") shall be established to provide consistent standards for the co-existence of residential and entertainment uses in Downtown Long Beach.

The DDED's boundaries are set forth in Long Beach Municipal Code Section 5.72.210.

Portions of the DDED are within the boundaries of PD 30 (Downtown Plan), which establishes a mix of uses, including residential, office, commercial, restaurant, retail and entertainment uses (the "DT Plan").

A.

Definitions.

"Ambient Music" shall mean low-level background music, whether amplified or not amplified, which is audible from a distance of no more than ten feet (10') from any portion of the exterior of the premises, and which is intended to create ambiance and is not intended to entertain. Ambient Music does not include music played by a disc jockey or DJ. An entertainment permit is not required for Ambient Music.

"Amplified Music" shall mean electronically enhanced music which is audible from a distance of no more than fifty feet (50') from any portion of the exterior of the premises, and which is intended to entertain.

"Entertainment" as used here shall have the same definition as "entertainment activity" contained in Long Beach Municipal Code Section 5.72.115.

"Nightclub" shall have the same definition as "nightclub" contained in Long Beach Municipal Code Section 21.15.1855. A "nightclub" in the DT area within the DDED must apply for and obtain a Conditional Use Permit as required by Long Beach Municipal Code Section 21.25.206 and consistent with the Downtown Plan. This does not include nightclubs south of Ocean Boulevard as they are not in PD 30.

All other establishments desiring entertainment permits in the DDED must, in addition to the requirements of Sections 5.72 and 21.15.110, agree in writing to comply with the conditions of the DDED as set forth below.

B.

Standard Conditions.

1.

Individuals and business entities who apply for and obtain entertainment permits ("Permittees") shall comply with all applicable laws, regulations, ordinances and stated conditions. If Permittee fails to comply with the conditions of this permit, or if his or her operations result in excessive police service as defined below, Permittee will be required to operate under the more restrictive conditions described in Paragraph C, "Tiered Conditions," without further hearing.

2.

When the Chief of Police determines that excessive police services are required as the result of any incident or nuisance arising out of or in connection with Permittee's operations, the cost of such services shall be billed to Permittee as an expense of an emergency response. "Expense of an emergency response" means those costs incurred by the City of Long Beach in making any appropriate emergency response to the incident, and shall be comprised of all costs directly arising because of the response to the particular incident, including, but not limited to, the costs of providing police, firefighting, rescue, and emergency medical services at the scene of the incident, as well as the salaries of the personnel responding to the incident.

3.

Indoor entertainment and outdoor Ambient Music that otherwise conforms with the requirements of state and local laws and regulations may be offered until 2:00 a.m., seven (7) days a week.

4.

Outdoor Amplified Music, including entertainment activity on rooftop patios or areas with sidewalk-occupancy permits, must be applied for and will be considered separately from indoor entertainment. Outdoor amplified entertainment, if permitted, will be subject to the following restrictions: a) sound amplifying equipment may be used only between 10:00 a.m. and 10:00 p.m. Sunday through Thursday, and 10:00 a.m. and midnight Friday and Saturday; b) in conjunction with an Occasional Event Permit, pursuant to Long Beach Municipal Code section 5.72.130; or c) in conjunction with a special events permit. Permittee agrees that the following standard is reasonable: Noise emanating from Permittee's premises shall not be unreasonably loud or disturbing in light of the facts and circumstances then prevailing within fifty feet (50') of the perimeter of the premises in all directions.

5.

Permittees shall place or post conditions on the premises in a place easily accessible by City staff, including law enforcement personnel.

6.

Each holder of an existing entertainment permit within the DDED and each new applicant for a DDED, including an applicant who acquires an existing business through a change of ownership, shall, within ninety (90) days of application, be required to acknowledge that he or she has read, understood and agreed to the conditions of the permit. Each new applicant for a DDED permit, including an applicant who acquires an existing business through a change of ownership, shall, within ninety (90) days of application, submit proof of attending the LEAD program offered by the Department of Alcoholic Beverage Control.

7.

Permittees shall be responsible for all entertainment activities at the location, including those conducted by promoters. Each Permittee and promoter conducting business within the City of Long Beach shall obtain a City of Long Beach Business License prior to conducting entertainment activities governed by a DDED permit. Permittee shall provide all promoters and agents hired to conduct entertainment activities with a copy of the approved permit, which shall include a copy of the approved conditions of operation. In addition, promoters must have or obtain a Promoter's License. Once the Promoter's License has been approved, the promoter will be added to a list of approved promoters in the City of Long Beach.

8.

If Permittee utilizes an independent third party event promoter to provide entertainment related services resulting in any public safety call for service, the City reserves the right to remove and/or restrict the use of independent third party promoters.

9.

The operation of the establishment shall be limited to those activities expressly indicated on the entertainment permit application and approved by the City Council. Any change in the operation that exceeds the conditions of the approved permit will require approval by City Council.

10.

Permittee shall conduct all aspects of his or her operation, including before- and after-hours deliveries and maintenance, in consideration of residences located nearby.

11.

Permittee agrees that the following standard is reasonable: Noise emanating from Permittee's premises shall not be unreasonably loud or disturbing in light of the facts and circumstances then prevailing within fifty feet (50') of the perimeter of the premises in all directions. Sound and amplification equipment shall be monitored during business hours to ensure that audible noise remains at acceptable levels in accordance with Long Beach Municipal Code Chapter 8.80.

12.

On and after the date this ordinance takes effect, applicants for new entertainment permits in the DDED must cause an acoustical study to be prepared by a qualified, certified acoustical engineer, hired by the applicant and acceptable to the City, which shall demonstrate the sound emanating from the applicant's establishment meets the sound standards described in Long Beach Municipal Code Chapter 8.80. The study shall be reviewed and confirmed by the Health Department and the Development Services Department during their review of the permit application.

13.

A new applicant for an entertainment permit in the DDED, including an applicant who acquires an existing business through a change of ownership, may be eligible to request a waiver of the requirement to conduct a sound study if the applicant meets one of the following criteria:

a.

The location had an entertainment permit, and no more than twelve (12) months have elapsed since the permitted entertainment at that location ceased; or

b.

Verifiable evidence that best sound mitigation practices were used in the construction or retrofitting of the location.

14.

The waiver request shall be presented to a committee comprised of representatives of the City's noise office, business license bureau and zoning administration, who will conduct a hearing to determine if the sound study waiver is appropriate for the location. The committee shall consider but not be limited to the following: the previous use of the location, the history of sound-related complaints and violations at the location, proximity to residential development and the age and condition of the building, including sounds mitigation efforts. The committee shall determine if the waiver request shall be granted or denied.

15.

Denial of a waiver request may be appealed to a City hearing officer pursuant to Long Beach Municipal Code Section 2.93.050.

16.

No adult entertainment, as defined by Long Beach Municipal Code Subsection 5.72.115.B, shall be conducted on the permitted premises. Permittees shall not allow, permit, procure, or encourage, anyone to expose male or female genitals, cleft of the buttocks, the areola or any portion of the female breast below the areola, while at or inside the business.

17.

Current occupancy loads shall be posted at all times, and Permittee shall have an effective system to keep count of the number of occupants present at any given time and provide that information to public safety personnel upon request, as required by Long Beach Municipal Code Section 18.48.200.

18.

If Permittee's operations give rise to a substantial increase in complaints/calls for police service, Permittee shall increase security staff, implement the use of electronic metal detection equipment, increase outside lighting, or make other changes to the premises or operation as the Chief of Police determines are necessary to protect the safety of the public. In the event of a conflict on this issue between the requirements of this permit and any permit issued by the Alcoholic Beverage Commission, the more stringent regulation shall control.

19.

Permittee shall be responsible for maintaining an adequate security staff to supervise patrons and those waiting to enter. Potential patrons awaiting entry in a defined "queue" shall be counted toward the calculation of required security staffing levels. For up to fifty (50) people inside (or in a defined queue waiting to enter) an establishment, the Permittee shall provide a minimum of one (1) uniformed licensed security guard per floor. There shall be one (1) additional guard for each subsequent increment or each partial increment of fifty (50), plus one (1) guard per each additional floor. The Chief of Police may relax these staffing levels during daylight hours, or during hours in which the primary activity in the establishment is dining, if he determines that a lower level of security staffing is consistent with the protection of public health and safety. The attire of each security guard shall clearly indicate the guard's affiliation with the establishment by means of a pin, shirt, or other clearly-visible form of identification.

20.

Restaurants with alcohol and entertainment in the DDED must be operated and maintained as bona fide eating places, making actual and substantial sales of meals, during at least one (1) full normal mealtime, at least five (5) days a week. Normal mealtimes are 6:00 a.m. - 9:00 a.m., 11:00 a.m. - 2:00 p.m., and 6:00 p.m. - 9:00 p.m, or as defined in the Permittee's ABC license. Minors are only allowed on the premises during mealtime hours.

21.

Persons under eighteen (18) years of age shall not be permitted to enter nor permitted to remain on the premises after 10:00 p.m., unless accompanied by a parent or legal guardian.

22.

Permittee shall establish a program to discourage loitering and littering outside any of the entrance/exit doors at all times open for business.

23.

Permittee shall take steps to prevent patrons from loitering in the immediate area, littering or making excessive noise at the conclusion of each event and at closing time.

24.

Permittee shall not distribute, post or attach, and shall be responsible for ensuring that its promoters and or agents do not distribute, post or attach, advertising matter on public property or on any vehicle on public property.

25.

Any graffiti painted or marked upon the premises or on any adjacent area under the control of Permittee shall be removed or painted over within twenty-four (24) hours of being applied.

26.

Permittee shall install and maintain a video surveillance system that monitors no less than the front and rear of the business with full view of the public rights-of-way and any parking lot under the control of the Permittee. The video system must be capable of delineating on playback the activity and physical features of persons and areas within the premises. Recordings shall be retained for a minimum of thirty (30) days and be accessible via the Internet by the Long Beach Police Department. A Public Internet Protocol (IP) address and user name/password is also required to allow the Long Beach Police Department to view live and recorded video from these cameras over the internet. All video security cameras shall be installed to the satisfaction of the Chief of Police, Director of Technology Services, and Director of Development Services. At the discretion of the Chief of Police, Permittee may be required to add additional video cameras.

27.

Insofar as is practicable, during the hours of operation, the front door of the establishment, or any door fronting on a public right-of-way, including an alley, shall remain closed at all times to minimize noise.

28.

Windows shall not be obscured by the placement of signs, including signs advertising alcoholic products, dark window tinting, shelving, racks or similar obstructions.

29.

Permittee shall install an alarm system at the exit doors.

30.

No publicly accessible telephones shall be maintained on the exterior of the premise. Any existing publicly accessible telephones shall be removed prior to the issuance of the permit.

31.

As a condition of any City approval, Permittee shall defend, indemnify and hold harmless the City of Long Beach, its agents, officers and employees from any claim, action or proceeding against the City of Long Beach or its agents, officers or employees to attack, set aside, void or annul the approval of the City concerning the processing of the permit or any action relating to or arising out of such approval. At the discretion of the City and with the approval of the City Attorney, a deposit of funds by the permit applicant may be required in an amount sufficient to cover the anticipated litigation costs.

32.

Permits may be administratively reviewed by the City within six (6) months from the date of issuance to monitor compliance with permit conditions.

C.

Tiered Conditions. "Tiered Conditions" as set forth below consist of progressively more stringent regulations on entertainment and related activities in the DDED. By applying for an entertainment permit in the DDED, the applicant must agree to the conditions set forth below and must agree to waive a hearing if these conditions are applied. The City Council may add further conditions not listed here, or revoke the permit, if Permittee does not comply with the conditions imposed in this permit. These conditions do not modify or limit in any way the authority of the Chief of Police to enforce Penal Code Section 415 (disturbing the peace) against any person, or of the Chief of Police or the Fire Marshal to immediately take action in the event of an imminent threat to public health or safety.

1.

Tier 1 Conditions:

a.

Permittee may have entertainment on the premises during the maximum hours permitted in the DDED, consistent with the conditions imposed in the entertainment permit, ABC requirements and with conditions imposed under a Conditional Use Permit (if applicable). As long as the primary requirements for safety and noise are met (Conditions 1-29), Permittee may choose the methods of meeting those requirements.

b.

Noncompliance with Tier 1 conditions: When the City determines that Permittee has violated the terms of the permit, including Permittee's obligation to comply with all other laws and regulations, he or she may require Permittee to attend a meeting with the involved departments to address community concerns and discuss how the implementation of Tier 2 Conditions can be avoided.

2.

Tier 2 Conditions:

a.

Noise: Following the receipt of three (3) or more noise complaints that require a response by the Police Department within a 30-day period and which are found to violate the noise standard prohibiting unreasonably loud sound fifty feet (50') from the perimeter of the premises, Permittee will be notified that his or her premises must comply with those Tier 2 Noise Conditions which the City determines are necessary to protect the public peace and to comply with the City's noise ordinance, from among the following list:

(i)

Permittee must keep all doors and windows closed except while patrons are entering or exiting;

(ii)

Permittees shall submit an acoustical study, performed by a qualified, certified acoustical engineer, hired by the applicant and acceptable to the City. The study shall be reviewed and confirmed by the Health Department and the Development Services Department. Based on the results of the acoustical study, appropriate mitigation measures may be required so that the noise emanating complies with the sound ordinance. Such measures must be completed and approved by the City before outdoor amplified entertainment will be permitted. If the Permittee did not previously perform and submit such an acoustical study and mitigation measures, the Permittee shall do so. Once a Permittee has been notified of Tier 2 status, the Permittee can no longer qualify for a waiver pursuant to Paragraph 13;

(iii)

Sound and amplification equipment shall be monitored during business hours to ensure that audible noise remains at acceptable levels in accordance with Long Beach Municipal Code Chapter 8.80;

(iv)

No entertainment of any kind will be permitted after 1:00 a.m.;

(v)

No outdoor entertainment of any kind (amplified or non-amplified) will be permitted after 10:00 p.m.;

(vi)

No queue will be permitted after midnight. Any persons gathering outside the establishment shall be considered to be loitering.

b.

Security/Public Safety: For the purposes of this Section, an "incident" means a complaint or occurrence that requires a Police or Fire Marshal response to Permittee's premises due to Permittee's noncompliance with the terms and conditions of the Entertainment Permit. Following three (3) or more incidents within a 30-day period, or a single incident involving violence, the Chief of Police or Fire Marshal may notify Permittee of additional measures and conditions to be implemented. These additional measures will be some or all of the following:

(i)

Additional security personnel at hours determined necessary by the Chief of Police to prevent Permittee's operations from creating a public nuisance;

(ii)

Additional security checks on incoming patrons;

(iii)

No entertainment of any kind will be permitted after 1:00 a.m.;

(iv)

No queue after midnight. Any persons gathering outside the establishment shall be considered to be loitering;

(v)

Any additional measures deemed necessary by the Chief of Police or the Fire Marshal to protect health and safety;

(vi)

Upon the request of a Permittee who has been required to implement Tier 2 conditions, the Chief of Police, in consultation with the Fire Marshal and the Health Department, shall review Permittee's recent compliance history and determine whether some or all conditions can be returned to Tier 1 levels consistent with the protection of public health and safety.

3.

Tier 3 Conditions: The failure of a permittee to resolve noise and/or security/public safety issues as directed by the City within a period not to exceed thirty (30) days shall result in the implementation of Tier 3 conditions:

a.

Noise:

(i)

No outdoor entertainment of any kind will be permitted at any time;

(ii)

Only Ambient Music will be permitted at any time OR Amplified Music will only be permitted until 10:00 p.m. any night;

(iii)

All noise must be contained within the premises. No noise shall be audible outside the establishment;

(iv)

Implement Health Department recommendations to mitigate noise, including pre- and post-implementation monitoring data collected by a certified noise expert approved by the Health Department.

b.

Security/Public Safety:

(i)

Entertainment must cease not later than 10:00 p.m. on Sunday through Wednesday nights and no later than midnight on Thursday through Saturday nights. The Chief of Police is authorized to make adjustments of up to one (1) hour in these times to protect the public peace;

(ii)

Permittee shall limit the queue outside the establishment to no more than twenty (20) people. There shall be no queue within two (2) hours of the lawful closing time. Any persons gathering outside the establishment shall be considered to be loitering;

(iii)

Any additional measures determined necessary by the Chief of Police or the Fire Marshal may be imposed to protect health and safety.

If the City determines that Permittee has not modified his or her operations in compliance with Tier 3 conditions and Permittee continues to violate the terms and conditions of the Entertainment Permit, the City shall begin revocation or suspension proceedings. Permittee is entitled to a hearing to contest such revocation or suspension.

( ORD-15-0002 , § 1, 2015; ORD-08-0039 § 1, 2008: ORD-07-0064 § 1, 2007: ORD-07-0012 § 1, 2007: ORD-07-0001 § 1, 2007: ORD-06-0010 § 1 (part), 2006)