Title 5
BUSINESS LICENSES AND REGULATIONS

Chapters:

5.05 Cable System Regulations

5.08 Peddlers, Solicitors and Transient Merchants

5.10 Adult Entertainment

5.15 Business Licenses

Chapter 5.05
CABLE SYSTEM REGULATIONS

Sections:

5.05.010 Short title.

5.05.020 Definitions.

5.05.030 Franchise grant.

5.05.040 Franchise purposes.

5.05.050 Nonexclusive franchise.

5.05.060 Application.

5.05.070 Duration.

5.05.080 Franchise territory.

5.05.090 Police powers.

5.05.100 Use of rights-of-way.

5.05.110 Pole or conduit agreements.

5.05.120 Franchise fees.

5.05.130 Taxes.

5.05.140 Customer service standards.

5.05.150 Other authorizations.

5.05.160 Rules and regulations of the city.

5.05.170 Delegation of powers.

5.05.180 Coverage.

5.05.190 Technical standards.

5.05.200 Construction standards.

5.05.210 Street cut or repair.

5.05.220 Safety requirements.

5.05.230 Regulation of rates and charges.

5.05.240 Privacy.

5.05.250 Discriminatory practices prohibited.

5.05.260 Equal employment opportunity.

5.05.270 Reimbursement.

5.05.280 Franchise renewal.

5.05.290 Franchise revocation.

5.05.300 Acceptance.

5.05.310 Conflicts.

5.05.320 Miscellaneous provisions.

5.05.010 Short title.

This chapter shall constitute the “cable system regulations” of the city of Newcastle and may be referred to as such. (Ord. 2006-351 § 2).

5.05.020 Definitions.

For the purposes of this chapter, the following words, terms, phrases and their derivations have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the singular number include the plural number and words in the plural number include the singular number.

A. “Applicant” means any person or entity that applies for an initial franchise.

B. “Cable Act” means the Cable Communications Policy Act of 1984 as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, and as any of them may be amended.

C. “Cable operator” means any person or group of persons, including a franchisee, who provide(s) cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system or who otherwise control(s) or is (are) responsible for, through any arrangement, the management and operation of such a cable system.

D. “Cable service” means the one-way transmission to customers of video programming or other programming service, and customer interaction, if any, which is required for the selection or use of such video programming or other programming service.

E. “Cable system” means any facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple customers within a community, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves customers without using any public right-of-way; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the federal Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a cable system (other than for purposes of Section 621(c) (47 U.S.C. 541(c))) to the extent such facility is used in the transmission of video programming directly to customers, unless the extent of such use is solely to provide interactive on-demand services; (4) an open video system that complies with federal statutes and regulations; or (5) any facilities of any electric utility used solely for operating its electric utility systems.

F. “City” means the city of Newcastle, a municipal corporation of the state of Washington, and all of the area within its boundaries, as such may change from time to time.

G. “City council” means the Newcastle city council, or its successor, the governing body of the city.

H. “Customer” means any person who or which elects to subscribe to, for any purpose, cable service provided by a franchisee by means of or in connection with the cable system and whose premises are physically wired and lawfully activated to receive cable service from the franchisee’s cable system.

I. “Customer service representative” or “CSR” shall mean any person employed by the cable operator to assist or provide service to customers, whether by answering public telephone lines, answering customers’ questions or performing other customer-service-related tasks.

J. “Customer service standards” means those customer service standards set forth herein and as hereafter amended that are applicable to cable operators.

K. “FCC” means the Federal Communications Commission.

L. “Franchise” means an agreement that authorizes a person or entity to construct, operate, maintain or reconstruct a cable system. Upon the written acceptance by a franchisee, the agreement constitutes a contract between the city and franchisee.

M. “Franchise area” means the area within the jurisdictional boundaries of the city to be served by a franchisee as specified in the franchise.

N. “Franchisee” means the person, firm, corporation or entity to whom or which a franchise, as hereinabove defined, is granted by the city council under this chapter and the lawful successor, transferee or assignee of said person, firm, corporation or entity.

O. “Normal business hours” shall mean those hours during which most similar businesses in the city are open to serve customers. In all cases, “normal business hours” must include some evening hours at least one night per week and/or some weekend hours.

P. “Normal operating conditions” shall mean those service conditions that are within the control of the cable operator. Those conditions that are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages and severe or unusual weather conditions. Those conditions that are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade of the cable system.

Q. “Right-of-way” or “rights-of-way” means all of the following which have been dedicated to the public or are hereafter dedicated to the public and maintained under public authority or by others and are located within the city: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks, easements and similar public property and areas.

R. “Service interruption” shall mean the loss of picture or sound on one or more cable channels. (Ord. 2006-351 § 3).

5.05.030 Franchise grant.

It is unlawful to engage in or commence construction, operation or maintenance of a cable system in the city without a franchise issued under this chapter. The city council may, by ordinance, issue a nonexclusive franchise to construct, operate and maintain a cable system within all or any portion of the city to any person or entity, whether operating under an existing franchise or not, who applies for authority to furnish cable service which complies with the terms and conditions of this chapter; and provided, that such person or entity also agrees to comply with all of the provisions of the franchise. However, this shall not be deemed to require the grant of a franchise to any particular person or entity. The city council may restrict the number of franchisees should it determine such a restriction would be in the public interest. (Ord. 2006-351 § 4).

5.05.040 Franchise purposes.

A franchise granted by the city under the provisions of this chapter shall:

A. Permit the franchisee to engage in the business of operating a cable system and providing cable service within the city;

B. Permit the franchisee to erect, install, construct, repair, reconstruct, replace and retain wires, cables, related electronic equipment, conduits and other property in connection with the operation of the cable system in, on, over, under, upon, along and across rights-of-way within the city; and

C. Set forth the obligations of the franchisee under the franchise. (Ord. 2006-351 § 5).

5.05.050 Nonexclusive franchise.

Any franchise granted pursuant to this chapter shall be nonexclusive and not preclude the city from granting other or future franchises or permits. (Ord. 2006-351 § 6).

5.05.060 Application.

A. An applicant for an initial franchise shall submit to the city a written application in a format provided by the city, at the time and place specified by the city for accepting applications, and accompanied by the designated application fee. An application fee in the amount of $20,000 shall accompany the application to cover costs associated with processing the application, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the applicant, the costs of consultants, notice and publication requirements, and document preparation expenses. In the event such costs exceed the application fee, the applicant shall pay the difference to the city within 30 days following receipt of an itemized statement of such costs. Conversely, if such costs are less than the application fee, the city shall refund the difference to the applicant.

B. An application for an initial franchise for a cable system shall contain, at a minimum:

1. A statement as to the proposed franchise and information relating to the characteristics and location of the proposed cable system;

2. A resume of prior history of the applicant, including the expertise of the applicant in the cable system field;

3. Information demonstrating the applicant’s legal, technical and financial ability to construct and operate the proposed cable system;

4. A list of the partners, general and limited, of the applicant, if a partnership, members, if a limited liability company, or the percentage of stock owned or controlled by each stockholder having a five percent or greater interest, if a corporation;

5. A list of officers, directors and key employees of the applicant, together with a description of the background and experience of all such persons;

6. The names and addresses of any parent entity or subsidiary of the applicant or any other business entity owning or controlling the applicant in whole or in part, or owned or controlled in whole or in part by the applicant;

7. A proposed construction and service schedule;

8. Any other reasonable information that the city may request.

9. The city shall be allowed the opportunity to ask relevant follow-up questions and obtain further information from whatever source. A refusal by an applicant to cooperate or provide requested information is sufficient grounds for the city to deny an application.

C. Upon receipt of an application for an initial franchise and after obtaining any additional information the city in its sole discretion deems appropriate from any source, a hearing shall be scheduled to allow public comment. At the hearing, the city council shall receive public comment regarding the following:

1. Whether the public will benefit from granting a franchise to the applicant;

2. Whether the applicant appears to have adequate legal, financial and technical qualifications and capabilities to build, operate and maintain a cable system in the city;

3. Whether the applicant has any conflicting interests, either financial or commercial, that will be contrary to the interests of the city;

4. Whether the applicant will comply with all of the terms and conditions placed upon a franchisee by the franchise, this chapter and other applicable local laws and regulations;

5. Whether the applicant will comply with all relevant federal and state laws and regulations pertaining to the construction, operation and maintenance of the cable system.

D. Within 60 days after the close of the hearing, the city council shall decide whether to grant a franchise and on what conditions. The city council’s decision shall be based upon the application, any additional information submitted by the applicant or obtained by the city from any source and public comments. The city council may grant one or more franchises or may decline to grant any franchise. (Ord. 2006-351 § 7).

5.05.070 Duration.

The term of any franchise, and all rights, privileges, obligations and restrictions pertaining thereto, shall be specified in the franchise. The effective date of any franchise shall be as specified in the franchise. (Ord. 2006-351 § 8).

5.05.080 Franchise territory.

The franchise territory shall include all areas within a city or a lesser area as specified in the franchise. (Ord. 2006-351 § 9).

5.05.090 Police powers.

In accepting any franchise, the franchisee acknowledges that its rights thereunder are subject to the police powers of the city to adopt and enforce general ordinances necessary for the health, safety and welfare of the public, and it agrees to comply with all applicable laws enacted by the city pursuant to such power. (Ord. 2006-351 § 10).

5.05.100 Use of rights-of-way.

For the purposes of operating and maintaining a cable system in the city, a franchisee may place and maintain within the rights-of-way such property and equipment as are necessary and appurtenant to the operation of the cable system. Prior to construction of the cable system in the rights-of-way, the franchisee shall procure all necessary permits, pay all applicable fees in connection therewith and comply with all applicable laws, regulations, resolutions and ordinances, including, but not limited to, land use and zoning requirements. (Ord. 2006-351 § 11).

5.05.110 Pole or conduit agreements.

No franchise shall relieve franchisee of any of its obligations involved in obtaining pole or conduit agreements from any department of the city, any utility company or from others maintaining facilities in the rights-of-way. (Ord. 2006-351 § 12).

5.05.120 Franchise fees.

The franchisee shall pay the city franchise fees in accordance with the terms of the franchise. (Ord. 2006-351 § 13).

5.05.130 Taxes.

Nothing in this chapter shall limit the franchisee’s obligation to pay applicable local, state and federal taxes. (Ord. 2006-351 § 14).

5.05.140 Customer service standards.

A. Policy. A cable operator will first resolve customer inquiries and complaints without delay and without involvement of the city. Where a given complaint is not addressed by the cable operator to the customer’s satisfaction, the city may intervene.

These standards are intended to be of general application. A cable operator is free to exceed these standards for the benefit of its customers. However, the cable operator shall be relieved of obligations hereunder if it is unable to perform due to a force majeure event affecting a significant portion of the franchise area.

B. Customer Service.

1. Courtesy. All employees of the cable operator shall be courteous, knowledgeable and helpful and shall provide effective and satisfactory service in all contacts with customers.

2. Availability and Accessibility – In Person. The cable operator must maintain, at a minimum, one customer service center located in the Eastside. This customer service location shall at all times allow customers to make payments, return equipment or get assistance from knowledgeable staff. The customer service center shall be open Monday through Saturday, excluding legal holidays, with sufficient hours necessary to meet customer demand. The foregoing requirement will be met if the cable operator provides at least one full-service customer service center, or alternatively two co-location customer service locations conveniently located on the Eastside, staffed to meet all customer needs with on-site customer service representatives offering the following services to customers: payments (including the ability to provide change and transaction receipts), equipment exchange, processing of change of service requests and response to customer inquiries and requests. If, however, a customer service location is required to relocate, the cable operator shall be allowed a reasonable period of time to establish a new location.

3. Availability and Accessibility – On the Telephone. A CSR will be available to respond to customer inquiries during normal business hours. The cable operator shall maintain local or toll-free telephone access lines that shall be available during normal business hours for service/repair requests and billing inquiries. The cable operator shall retain sufficient customer service representatives and telephone line capacity to ensure that, during normal operating conditions, telephone calls to service/repair and billing inquiry lines are answered within 30 seconds or less, and that any transfers are made within 30 seconds. This standard shall be met no less than 90 percent of the time, measured on a quarterly basis under normal operating conditions. Under normal operating conditions, the total number of calls receiving busy signals shall not exceed three percent of the total telephone calls. The cable operator shall not be required to acquire equipment or perform surveys to measure compliance with any of the telephone answering standards above unless and until the city requests such actions based on a historical record of customer complaints indicating a clear failure to comply.

C. Responsiveness.

1. The cable operator shall complete all standard installations within seven business days after an order has been placed, unless otherwise requested by the customer. “Standard” installations shall include those that are located within 125 aerial feet of the cable operator’s distribution system. This standard must be met 95 percent of the time under normal operating conditions as measured on a quarterly basis. If the customer requests a nonstandard installation, or the cable operator determines that a nonstandard installation is required, the cable operator shall provide the customer in advance with a total installation cost estimate and an estimated date of completion.

2. Under normal operating conditions, all temporary cable drops shall be converted to a permanent drop within no more than three calendar weeks from the initial installation or at a time mutually agreed upon between the cable operator and customer.

3. Customers requesting installation of cable service or repair service to an existing installation may choose any available four-hour block of time for the appointment during normal business hours.

4. The cable operator shall be deemed to have responded to a request for service under the provisions of this subsection when a technician arrives within the agreed upon time. If the customer is absent when the technician arrives, the technician shall leave written notification of timely arrival. A record that notice was provided shall be kept by the cable operator.

5. If a cable operator representative fails to keep an installation or service appointment for any reason, the cable operator will contact the customer before the end of the scheduled appointment and reschedule the appointment at a time convenient for the customer.

6. The cable operator shall respond to a customer’s letter in writing within one week of receipt of the letter. The cable operator shall respond to a customer’s inquiry, complaint, general question or comment made by telephone or e-mail within 48 hours.

7. Any difficulties that cannot be resolved by the CSR shall be referred to the appropriate supervisor who shall use his/her best efforts to contact the customer within eight hours of initial contact and resolve the problem within a mutually agreeable time frame.

D. Repairs and Outages.

1. The cable operator shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions that the cable operator anticipates may last more than four hours shall occur during periods of minimum use of the cable system as reasonably determined by the cable operator.

2. If a customer calls to report poor signal quality or interruptions attributable to the cable operator’s equipment, the cable operator shall begin working on the problem no later than the next day following the customer’s call; provided, that the customer is available or at such later time as is convenient for the customer. If an appointment is necessary, the customer may choose a four-hour block of time during normal business hours or such other time that is convenient for the customer.

3. Upon discovery of an outage affecting three or more customers, the cable operator shall initiate its outage repair process within two hours, under normal operating conditions.

4. A cable operator shall initiate repairs to customer-reported service interruptions, for any cause beyond the control of the cable operator, within 24 hours after the conditions beyond its control have been corrected.

5. Under normal operating conditions, if after 24 hours service is not restored to a customer, a cable operator shall, upon a customer’s request, provide a refund or credit or other compensation of equal or greater value.

6. The cable operator will track and record all outages and service interruptions that occur within the franchise area.

7. The cable operator shall endeavor to notify the city the next business day of any outage of at least one continuous hour that affects 100 or more of its customers.

E. Bills, Credits, Refunds and Deposits.

1. The cable operator shall provide a clear and concise bill every month.

2. If a customer requests disconnection of any or all services, billing for affected services shall end on the same day as the request, or on the future date for which the disconnect is ordered. However, the customer may continue to be billed for equipment until returned to the cable operator. The cable operator shall issue a credit or refund to a customer within 30 business days after the close of the billing cycle following the return of the equipment and request for disconnection. If a customer was required to provide a deposit, that deposit must be returned with any interest accrued on the deposit.

F. Treatment of Property Owner’s Property.

1. Removal or trimming of trees and shrubs in rights-of-way will be subject to the regulations of the city.

2. The cable operator shall repair any damage or restore any property to as good a condition as before the work causing such damage or disturbance was initiated. The cable operator shall repair, replace or compensate all property owners for damages resulting from the cable operator’s installation, construction, service or repair activities.

3. Except in the case of an emergency involving public safety or service interruption to a large number of customers, the cable operator shall give reasonable notice to property owners or legal tenants prior to entering upon private premises, and the notice shall specify the work to be performed; provided, that in the case of planned construction operations, such notice shall be delivered or provided at least 24 hours prior to entry. All work done in the right-of-way shall be subject to time requirements of the permit.

4. Nothing herein shall be construed as authorizing access or entry to private property, or any other property, where such right to access or entry is not otherwise provided by law.

5. For the installation of pedestals or other major construction or installation projects, the cable operator shall notify by mail or door hanger the adjacent property owners/legal tenants in advance of rights-of-way work. In the case of an emergency, the cable operator shall attempt to contact the property owner or legal tenant in person, and in the event personal contact is not made, the cable operator shall leave a door hanger notice.

6. The cable operator shall clean all areas surrounding any work site of debris caused by the cable operator’s activities and ensure that all cable materials are disposed of properly.

G. Services for Customers with Disabilities.

1. For any customer with a disability, the cable operator shall at no charge deliver and pick up converters at the customer’s home. In the case of malfunctioning equipment, the cable operator’s service technician shall provide and install substitute equipment, ensure that it is working properly and recover the defective equipment for the cable operator at that time.

2. The cable operator shall provide TDD/TYY service with trained operators who can provide every type of assistance for any hearing-impaired customer at no charge.

3. The cable operator shall provide free use of a remote control unit to mobility-impaired customers.

4. Any customer with a disability may request the remote control unit or special services described above by providing the cable operator with a letter from the customer’s physician stating the need, any other official certification of disability or by making the request to the cable operator’s installer or service technician, where the need for the special equipment or services can be visually confirmed.

H. Customer Information.

1. The cable operator shall provide to customers an accurate, comprehensive service agreement and customer installation packet for use in establishing customer service. The installation packet shall also be provided during any reconnection or cable service upgrade requiring a home visit by the cable operator (excluding reconnections to the same customer within 12 months). Upon installation and annually thereafter or at any time the customer requests, the cable operator shall provide the following information, in clear, concise written form:

a. Products and services offered by the cable operator, including channel positions of programming carried on the cable system.

b. The cable operator’s complete range of service options and the prices for those services and conditions of subscription to programming and other services.

c. Installation and service maintenance policies, including the customer’s and cable operator’s responsibilities for equipment.

d. Billing and complaint procedures for investigation and resolution of customer service complaints, including the address and telephone number of the cable operator’s office(s), the cable operator’s policies on deposits, credit balances and returned check charges.

e. Policies concerning protection of customer privacy.

f. The availability of a parental control/lockout device and the procedures for channel blocking.

g. Days, hours of operation and location of the service center.

h. Information on how to contact the city representative who is responsible for administering the franchise including the address, telephone number and e-mail address.

i. Service termination procedures.

j. A description of the manner that will be used to provide notice of changes in rates, services or service terms and conditions.

k. The address and phone number of the customer service department that is responsible for handling cable questions and complaints for the cable operator. This information shall be prominently displayed in the installation packet.

2. Upon request by the city, a sample of the required notices provided to the customer shall be provided to the city.

3. The cable operator shall provide customers with written notification of any changes in rates, programming, services or channel positions as soon as possible in writing. Customers shall be given a description of the changes, their options for changing services they received, a phone number for questions and the effective dates. Notice must be given to customers a minimum of 30 days in advance of such changes if the change is within the control of the cable operator. In addition, the cable operator shall notify customers 30 days in advance of any significant changes in the other information required by the preceding subsection. Within 30 days following material policy changes, information regarding the changes will be provided to customers.

4. All officers, agents and employees of the cable operator, including its contractors and subcontractors who are in personal contact with customers, shall have visible cable-operator-represented identification cards bearing their name and photograph.

5. Every vehicle of the cable operator used for providing services to customers shall be clearly identified to the public as working for the cable operator.

I. Safety.

1. The cable operator shall install and locate its facilities, cable system and equipment in compliance with all federal, state, local and company safety standards, and in such manner as shall not unduly interfere with or endanger persons or property.

2. Whenever the cable operator receives notice that an unsafe condition exists with respect to its equipment, the cable operator shall investigate such condition immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition.

J. Complaint Procedure.

1. The cable operator shall establish written procedures for receiving, acting upon and resolving customer complaints, and crediting customer accounts in accordance with company policies, and shall publicize such procedures through printed documents at the cable operator’s sole expense.

2. The written procedures shall describe a simple process by which any customer may submit a complaint in person or by telephone, electronic mail or in writing to the cable operator regarding an alleged violation of any provision of these customer service standards, any terms or conditions of the customer’s contract with the cable operator or reasonable business practices.

3. The cable operator will use its best efforts to resolve customer concerns or complaints at the first contact.

4. The cable operator shall also notify the customer of the customer’s right to file a complaint with the city in the event the customer is dissatisfied with the cable operator’s decision.

5. Complaints to the City. Any customer shall be entitled to lodge any complaint directly with the city. The customer may lodge the complaint either by calling the city or by filing a written complaint, by letter or in electronic form.

6. If the city decides that further action is warranted, the city may intercede and attempt to help reach a resolution and/or require the cable operator to address the inquiry within 24 hours. Upon request by the city, the cable operator shall notify the city of the status of the inquiry within 48 hours and any subsequent resolution.

7. The cable operator shall maintain, in a manner consistent with the privacy rights of customers, an accurate and comprehensive file of complaints regarding the cable system or the cable operator’s operation of the cable system, by number and type and their disposition; service requests, identifying the number and nature of the requests and their disposition; outages, service interruptions and their disposition; and customer privacy information.

8. Overall Quality of Service. The city may evaluate the overall quality of customer service provided by the cable operator to customers in the city, at its sole discretion, based on the number of customer complaints received directly by the city or reported by the cable operator in its quarterly reports.

K. Verification of Compliance. Upon written request by the city, the cable operator shall document its compliance with all of the standards required through quarterly reports that demonstrate said compliance.

L. Noncompliance with Standards. Noncompliance with any provision of these standards may result in a violation of the franchise.

M. Remedying Violations. If the city has reason to believe that the cable operator has failed to comply with any of these standards, or has failed to perform in a timely manner, or if similar complaints repetitively arise, the city may require in writing that the cable operator remedy the alleged noncompliance. If the alleged noncompliance is denied or not remedied to the satisfaction of the city, the city may opt to follow the liquidated damages procedures or seek other remedies set forth in the franchise, or pursue any other remedies at law or in equity. (Ord. 2006-351 § 15).

5.05.150 Other authorizations.

Franchisee shall comply with and obtain, at its own expense, all permits, licenses and other authorizations required by federal, state and local laws, rules, regulations and applicable resolutions and ordinances which are now existing or hereafter lawfully adopted. (Ord. 2006-351 § 16).

5.05.160 Rules and regulations of the city.

In addition to the inherent powers of the city to regulate and control any franchise it issues, the authority granted to it by the Cable Act, and those powers expressly reserved by the city, or agreed to and provided for in a franchise, the right and power is reserved by the city to promulgate such additional rules and regulations as it may find necessary in the exercise of its lawful powers and in furtherance of the terms and conditions of a franchise and this chapter, and as permitted by applicable state and federal law. (Ord. 2006-351 § 17).

5.05.170 Delegation of powers.

Any right or power of the city may be delegated by the city to any officer, employee, department or board of the city, or to such other person or entity as the city may designate to act on its behalf. (Ord. 2006-351 § 18).

5.05.180 Coverage.

Franchisee shall design, construct and maintain its cable system to pass every residential dwelling unit in the franchise area, subject to any density requirements contained within the franchise. (Ord. 2006-351 § 19).

5.05.190 Technical standards.

Franchisee shall construct, install, operate and maintain its cable system in a manner consistent with all applicable federal, state and local laws and regulations, FCC technical standards and any other applicable standards set forth in the franchise. (Ord. 2006-351 § 20).

5.05.200 Construction standards.

A. All facilities constructed or operated under this chapter shall be installed and maintained at such places in or upon such rights-of-way and public places as shall not interfere with the free passage of traffic and the free use of adjoining property, and shall conform to federal standards, state requirements, and city regulations.

B. Franchisee shall be subject to any and all requirements established by the city with regard to the placement and screening of the franchisee’s facilities and equipment located in the rights-of-way and on other public property. Such requirements may include, but are not limited to, the use of landscaping to screen pedestals and cabinets and a requirement that construction be flush with the natural grade of the surrounding area.

C. The franchisee shall comply with any applicable ordinances, resolutions and regulations of the city regarding geographic information systems mapping for users of the rights-of-way; provided, that all similarly situated users of the rights-of-way must also accordingly comply. (Ord. 2006-351 § 21).

5.05.210 Street cut or repair.

The franchisee shall guarantee the durability and structural integrity of any street cut or repair made by it or its agents which is necessary for the construction, installation, operation, repair or maintenance of the franchisee’s facilities for the life of the street; provided, that no action by an unrelated third party materially affects the integrity of franchisee’s street cut or repair. The franchisee shall repair or replace, at no expense to the city, any failed street cut or repair which was completed by the franchisee or the franchisee’s agent(s), as determined by the city. (Ord. 2006-351 § 22).

5.05.220 Safety requirements.

The franchisee shall, at all times, employ professional care and install, maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public. In furtherance thereof, the franchisee must comply with the city’s traffic control requirements, including, for example, but without limitation, the use of signal devices, warning signs and flaggers when appropriate. All of franchisee’s structures, cables, lines, equipment and connections in, over, under and upon the rights-of-way and public ways or other places in the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe condition. (Ord. 2006-351 § 23).

5.05.230 Regulation of rates and charges.

The city may regulate the franchisee’s rates and charges to the full extent permitted by law. (Ord. 2006-351 § 24).

5.05.240 Privacy.

The franchisee will be bound by all of the provisions of applicable federal, state and local privacy laws. (Ord. 2006-351 § 25).

5.05.250 Discriminatory practices prohibited.

A. The franchisee shall not deny cable service or otherwise discriminate against customers or others on the basis of race, color, religion, national origin, sex, age, disability or other protected classes.

B. Access to cable service shall not be denied to any group of potential residential customers because of the income of the residents of the local area in which such group resides. (Ord. 2006-351 § 26).

5.05.260 Equal employment opportunity.

The franchisee shall strictly adhere to and comply with the equal employment opportunity requirements of federal, state and local laws. (Ord. 2006-351 § 27).

5.05.270 Reimbursement.

To the extent allowed by applicable law, the city may require a franchisee to reimburse the city, up to a maximum amount of $20,000, for the city’s reasonable processing and review expenses in connection with a sale or transfer of a franchise or a change in control of a franchise or franchisee, including, without limitation, costs of administrative review, financial, legal and technical evaluation of the proposed transferee or controlling party, costs of consultants, notice and publication costs, and document preparation expenses. In connection with the foregoing, the city will send the franchisee an itemized description of all such charges, and the franchisee shall pay such amount within 30 days after the receipt of such description. (Ord. 2006-351 § 28).

5.05.280 Franchise renewal.

Franchise renewals shall be conducted in accordance with applicable law. The city and the franchisee, by mutual consent, may enter into renewal negotiations at any time during the term of a franchise. (Ord. 2006-351 § 29).

5.05.290 Franchise revocation.

Any franchise granted by the city may be revoked during the period of such franchise, as provided in the franchise, subject to the procedural requirements provided for therein. A failure by the franchisee to comply with any of the material provisions of this chapter shall be deemed a material violation of a franchise. (Ord. 2006-351 § 30).

5.05.300 Acceptance.

No franchise granted pursuant to the provisions of this chapter shall become effective unless and until a separate ordinance granting the same has become effective. Within 45 days after the adoption by the city council of the ordinance awarding a franchise, or within such extended period of time as the city council in its discretion or franchise may authorize, the franchisee shall file with the city clerk its written and unconditional acceptance of the franchise. (Ord. 2006-351 § 31).

5.05.310 Conflicts.

Where a franchise and this chapter conflict, both shall be liberally interpreted to achieve a common meaning or requirement. In the event that this is not possible within reasonable limits, the franchise shall prevail. (Ord. 2006-351 § 32).

5.05.320 Miscellaneous provisions.

A. This chapter shall be construed in a manner consistent with all applicable federal, state and local laws, and shall apply to any franchise hereafter accepted by a franchisee.

B. The captions throughout this chapter are intended to facilitate the reading hereof. Such captions shall not affect the meaning or interpretation of any part of this chapter.

C. A franchisee shall not be relieved of its obligations to comply with any or all of the provisions of this chapter by reason of any failure of the city to demand prompt compliance.

D. The provisions of this chapter shall apply to all cable operators and cable systems to the greatest extent permissible under applicable law. (Ord. 2006-351 § 33).

Chapter 5.08
PEDDLERS, SOLICITORS AND TRANSIENT MERCHANTS

Sections:

5.08.010 Definitions.

5.08.020 Unlawful to solicit without license and permit.

5.08.030 Business license required.

5.08.040 Door-to-door sales permit – Application procedure.

5.08.050 Exemptions.

5.08.060 Revocation of permit.

5.08.070 Limitation on times for soliciting.

5.08.080 No soliciting signs – Compliance.

5.08.090 Violation – Penalty.

5.08.010 Definitions.

For the purpose of this chapter, the following words as used in this chapter shall be considered to have the meaning ascribed in this section:

A. “Business” means all activities engaged in with the object of monetary and/or financial gain, benefit, or advantage to any person, directly or indirectly.

B. “Peddler” means any person with no fixed place of business who goes from house to house, from place to place or from state to state carrying or transporting goods, wares or merchandise and offering, or exposing the same for sale, or making sales and deliveries to purchasers.

C. “Registered solicitor” means and includes a person or business that has obtained a valid business license and door-to-door sales permit as provided in this chapter.

D. “Residence” means and includes every separate living unit occupied for residential purposes by one or more persons, contained within any type of building or structure.

E. “Soliciting” or “solicitor” means a person involved in one or more of the following in-person or door-to-door activities:

1. Seeking to obtain orders for the purchase of goods, wares, merchandise, foodstuffs, services of any kind, character or description whatsoever, for any kind of consideration whatsoever; or

2. Seeking to obtain prospective customers for application or purchase of insurance of any type or character; or

3. Seeking to obtain subscriptions to books, magazines, periodicals, newspapers and every other type or kind of publication; or

4. Seeking to obtain gifts or contributions or money, clothing or any other valuable thing for the support or benefits of any association, organization, corporation or project, not otherwise exempt under NMC 5.08.050.

F. “Transient merchant” means any person, firm or corporation who engages temporarily in the business of selling and delivering goods, wares or merchandise, within the city, and who, in furtherance of such purposes, hires, leases, uses, or occupies any building, structure or vacant lot, motor vehicle, or trailer. (Ord. 2005-312 § 1).

5.08.020 Unlawful to solicit without license and permit.

It is unlawful and a nuisance for any person to engage in soliciting, calling at a residence without the previous consent of the occupant for purposes of soliciting orders, sales, subscriptions or business or commercial information, or peddling without first having obtained a business license from the office of the city clerk pursuant to Chapter 5.15 NMC and NMC 5.08.030, and a door-to-door sales permit pursuant to NMC 5.08.040. (Ord. 2005-312 § 1).

5.08.030 Business license required.

Peddlers, solicitors, and transient merchants shall obtain from the office of the city clerk a general business license, in accordance with Chapter 5.15 NMC, before commencing business, and shall have said business license in his or her possession at all times while conducting business within the city. The business license shall not be transferable. (Ord. 2005-312 § 1).

5.08.040 Door-to-door sales permit – Application procedure.

A. Each peddler, solicitor and transient merchants shall obtain from the office of the city clerk a door-to-door sales permit before commencing business within the city. The application for a door-to-door sales permit shall include the following information:

1. Each peddler, solicitor or transient merchant must provide to the city clerk a valid state photo driver’s license or valid state photo identification card when applying for a business license and door-to-door sales permit and the name, address, telephone number and contact person for the principal applicant;

2. The nature of the products or services involved, and the names of the manufacturers, if any;

3. The proposed method of operation in the city;

4. The state tax identification number;

5. The company, manager, supervisor or principal applicant shall provide a list of persons who will solicit in the city, including each person’s name, address and telephone number, a valid state photo driver’s license or valid state photo identification card for each person, and any convictions of any crimes by each person;

6. The Newcastle police department will run a computer check for each peddler, solicitor or transient merchant, prior to the city issuing a business license and door-to-door sales permit;

7. The principal applicant must show for the purposes of this application that the company is lawful and conducting legitimate business; and

8. Any other information required by the city, including but not limited to an executed waiver/release for a criminal background check by the Newcastle police department.

B. Upon verification by the city of the information required in subsection (A) of this section, the city shall issue the door-to-door sales permit, which shall be valid for 15 days and show the dates during which the permit is valid. The permit may be renewed for 15-day periods, while the business license is valid and no additional fees shall be required for the door-to-door sales permit renewal. Each peddler, solicitor or transient merchant shall display the door-to-door sales permit on their person at all times while conducting business in Newcastle. The door-to-door permit shall be exhibited whenever a solicitor, peddler or transient merchant is requested to do so by any officer of the city or by any person solicited. (Ord. 2005-312 § 1).

5.08.050 Exemptions.

A. Officers or employees of the city, county, state or federal government, or any subdivision thereof, when on official business shall be exempt from the provisions of this chapter;

B. Charitable, religious or nonprofit organizations or corporations that have received exempt status under 26 U.S.C. Section 501(c)(3), as amended, shall be exempt from all provisions of this chapter except NMC 5.08.080; and

C. Candidates for political office, campaign workers, members and representatives of political committees or political organizations campaigning on behalf of ballot issues, distributors of sample ballots and other political literature and persons soliciting signatures of registered voters on petitions to be submitted to any governmental agency shall be exempt from all provisions of this chapter. (Ord. 2005-312 § 1).

5.08.060 Revocation of permit.

Any door-to-door permit may be revoked by the city manager or the chief of police because of any violation by the company, or any solicitor working for the company, of this chapter or of any other ordinance of the city, or of any state or federal law, or whenever the company ceases to possess the qualifications required in this chapter for the original permit, or if the company or any solicitor working for the company made a misrepresentation of fact in the door-to-door sales permit or business license application. (Ord. 2005-312 § 1).

5.08.070 Limitation on times for soliciting.

No peddlers, solicitors or transient merchants shall solicit within the city without a prearranged appointment at a residence between the hours of 8:00 p.m. and 10:00 a.m. (Ord. 2005-312 § 1).

5.08.080 No soliciting signs – Compliance.

No peddlers, solicitors or transient merchants shall solicit at a residence that has a sign posted on the premises that prohibits soliciting, including but not limited to a “No Soliciting” sign. (Ord. 2005-312 § 1).

5.08.090 Violation – Penalty.

Except as otherwise provided in Chapter 5.15 NMC, violation of any provision of this chapter is a misdemeanor and any person, business, company, firm or corporation who violates any of the provisions of this chapter shall upon conviction be punished by a fine up to $1,000 and/or imprisonment for a term not to exceed 90 days. (Ord. 2005-312 § 1).

Chapter 5.10
ADULT ENTERTAINMENT

Sections:

5.10.010 Definitions.

5.10.020 License required.

5.10.030 License fees and duration.

5.10.040 License application.

5.10.050 Processing of license applications.

5.10.060 Denial of application for license.

5.10.070 License renewal.

5.10.080 Other license requirements.

5.10.090 Appeal.

5.10.100 Standards of conduct and operation – Exotic dance studios.

5.10.110 Standards of conduct and operation – Adult arcades, adult motion picture theaters and other adult entertainment businesses providing on-site entertainment.

5.10.120 Standards of conduct and operation – Adult bookstores, novelty stores, video stores and other businesses whether or not qualifying as adult entertainment businesses.

5.10.130 Standards of conduct and operations – Adult arcades.

5.10.140 License suspension and revocation.

5.10.150 Violation – Penalty – Misdemeanor.

5.10.160 Severability.

5.10.010 Definitions.

A. “Adult entertainment” means:

1. Any dance, amusement, show, display, exhibition, pantomime, modeling or any like performance of any type which involves a person who is unclothed or in such costume, attire or clothing as to expose any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or human male genitals in a discernibly turgid state, even if completely covered;

2. Any dance, amusement, show, display, exhibition, pantomime, modeling or any like performance of any type where such performance is distinguished or characterized by a predominant emphasis on the depiction, description, simulation or relation to the following specified sexual activities:

a. Human genitals in a state of sexual stimulation or arousal;

b. Acts of human masturbation, sexual intercourse or sodomy; or

c. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast; or

3. Any dance, amusement, show, display, exhibition, pantomime, modeling or any like performance of any type which is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the premises activity. This includes, but is not limited to, any such performance performed for, arranged with or engaged in with fewer than all members of the public on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance and which is commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or straddle dancing.

B. “Adult entertainment business” means an adult arcade, adult bookstore, adult novelty store, adult video store, adult motion picture theater and exotic dance studio, more specifically defined as follows:

1. “Adult arcade” means an establishment where, for any form of consideration, one or more still or motion picture projectors, like projectors, computer generated or enhanced pornography, panorama, peep show, or other image producing machines, for personal viewing, are used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which provides materials for individual viewing by patrons on the premises of the business which are characterized by the depiction or description of nudity or specified sexual activities.

2. “Adult bookstore, adult novelty store or adult video store” means a commercial establishment whose stock-in-trade, which is made available to the public for any form of consideration, is substantially or significantly comprised of books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other photographic reproductions or visual representations, which are characterized by the depiction or description of nudity or specified sexual activities. It shall be a rebuttable presumption that 20 percent of a business’ stock-in-trade is considered substantial or significant.

3. “Adult motion picture theater” means a commercial establishment where films, motion pictures, video cassettes, slides, or similar photographic reproductions characterized by the depiction or description of nudity or specified sexual activities are regularly shown for any form of consideration.

4. “Exotic dance studio” means a night club, bar, restaurant or similar commercial establishment to which any member of the public is invited or admitted and where an entertainer provides live adult entertainment performances to any member of the public.

C. “Applicant” means the individual or entity seeking an adult entertainment business license.

D. “Applicant control persons” mean all partners, corporate officers and directors and any other individuals in the applicant’s business organization who hold a significant interest in the adult entertainment business, based on responsibility for management of the adult entertainment business.

E. “Clerk” means such city employees or agents as the mayor shall designate to administer this chapter, or any designee thereof.

F. “Conviction” means an adjudication of conviction of guilt and occurs at such time as a plea of guilty has been accepted or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing or disposition, post-trial or post-fact finding motions and appeals. Conviction also means bail forfeiture.

G. “Employee” means any and all persons, including, but not limited to, managers, entertainers, and independent contractors, who work in or at or render any services directly related to the operation of any adult entertainment business offering adult entertainment, whether or not such person is compensated by the operator of such business.

H. “Entertainer” means any and all persons who provide live adult entertainment in an adult entertainment business, whether or not the person is an employee of the operator of the adult entertainment business, and whether or not the person is compensated by the operator of the business.

I. “Manager” means any person who manages, directs, administers or is in charge of the affairs and/or conduct or operation of any activity involving adult entertainment occurring at an adult entertainment business. This term shall include assistant managers.

J. “Member of the public” means any customer, patron, club member, or person, other than an employee as defined in this section, who is invited or admitted to an adult entertainment business.

K. “Nude or nudity” means:

1. Less than completely and opaquely covered or in such attire, costume or clothing as to expose to view male genitals, female genitals, pubic region, buttocks, anus, or any portion of the female breast below the top of the areola; or

2. Wearing any device or covering exposed to view which simulates the appearance of male genitals, female genitals, pubic region, buttocks, anus, or any portion of the female breast below the top of the areola.

L. “On-site entertainment” means adult entertainment which is provided on the premises of an adult entertainment business, whether or not provided for a fee or other consideration. This term shall not include the sale or rental of adult books, magazines, novelties and videos.

M. “Operator” means any person operating, conducting or maintaining an adult entertainment business.

N. “Panorama or peep show” means any device which, upon insertion of a coin or by any other means, exhibits or displays a picture or view by film, video or any other means.

O. “Person” means any individual, partnership, corporation, trust, incorporated or unincorporated association, marital community, joint venture, governmental entity, or other entity or group of persons, however organized.

P. “Specified sexual activities” means any of the following:

1. The caressing, touching, fondling or other intentional or erotic touching of, pubic region, buttocks, anus, male genitals or female breasts of oneself or of one person by another;

2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, flagellation, sodomy, bestiality, or any sexual acts which are prohibited by law;

3. Masturbation, actual or simulated;

4. Human genitals in a state of sexual stimulation, arousal or tumescence or visual state of sexual stimulation, arousal or tumescence, even if completely and opaquely covered; or

5. Excretory functions as a part of or in connection with any of the activities set forth in this subsection. (Ord. 98-181 § 1).

5.10.020 License required.

A. It shall be unlawful for any person to conduct, maintain or operate an adult entertainment business unless such person is the holder of a valid and subsisting license from the city to do so, obtained in the manner provided in this chapter.

B. It shall be unlawful for any entertainer, employee or manager to knowingly work in or about, or to knowingly perform any service or entertainment directly related to the operation of, an unlicensed adult entertainment business.

C. It shall be unlawful for any entertainer to perform adult entertainment in an adult entertainment business unless such person is the holder of a valid and subsisting license from the city to do so, obtained in the manner provided in this chapter.

D. It shall be unlawful for any manager to work in an adult entertainment business providing on-site adult entertainment unless such person is the holder of a valid and subsisting license from the city to do so, obtained in the manner provided in this chapter.

E. Any violation of the provisions of this subsection shall constitute a misdemeanor as set forth in this chapter. (Ord. 98-181 § 1).

5.10.030 License fees and duration.

A. Adult Entertainment Businesses.

1. The annual licensing fee for an exotic dance studio business shall be $500.00. This amount shall be used for the cost of administration of this chapter.

2. The annual licensing fee for all other adult entertainment businesses shall be $150.00. This amount shall be used for the cost of administration of this chapter.

B. Managers and Entertainers. The annual licensing fee for managers and entertainers shall be $150.00. This amount shall be used for the cost of administration of this chapter.

C. Proration. There shall be no proration of the licensing fees described in this subsection, except that the fee for any such license obtained after June 30 shall be one-half of the fees provided in this subsection. (Ord. 98-181 § 1).

5.10.040 License application.

A. Adult Entertainment Business.

1. All applications for an adult entertainment business license shall be submitted to the clerk in the name of the person or entity proposing to offer adult entertainment, and shall be signed by such person and certified as true under penalty of perjury. All applications shall be submitted on a form supplied by the city, which shall require the following information:

a. The names, aliases or previous names, driver’s license numbers (if any), social security numbers (if any), business, mailing and residential addresses, and business telephone numbers for the applicant and for each applicant control person.

b. If a partnership, whether the partnership is general or limited; and if a corporation, the date and place of incorporation, evidence that the corporation is in good standing under the laws of Washington, and the name and address of any registered agent for service of process.

c. Whether the applicant or any applicant control person(s) holds any other licenses under for other adult entertainment businesses, from this city or from another city, county or state, and if so, the names and addresses of every other licensed adult entertainment business.

d. A summary of the business history of the applicant and applicant control persons in owning or operating adult entertainment businesses, including names, addresses and dates of operation for such businesses, and whether any adult entertainment licenses have been revoked or suspended, and the reasons therefor.

e. Any and all criminal convictions or forfeitures of the applicant and all applicant control persons, other than parking offenses or minor traffic infractions, occurring within five years immediately preceding the date of the application, including the dates of conviction, nature of the crimes, the names and locations of courts, and dispositions.

f. A description of the business, occupation or employment histories of the applicant and all applicant control persons for the three years immediately preceding the date of the application.

g. Authorization for the city, its agents and employees to seek information to confirm any statements set forth in the application.

h. The location and doing-business-as name of the proposed adult entertainment business, including a legal description and street address of the property, and the names, addresses and telephone numbers of each owner and lessee of the property.

i. Two two-by-two inch color photographs of the applicant and applicant control persons, taken within six months of the date of application and showing only the full face.

j. A complete set of fingerprints for the applicant and each applicant control person, which shall be taken by city police department employees.

k. If the application is for an exotic dancing studio, a scale drawing or diagram showing the configuration of the premises for the proposed exotic dancing studio, including a statement of the total floor space occupied by the business, and marked dimensions of the interior of the premises. Performance areas, seating areas, management’s offices and stations, restrooms and service areas shall be clearly marked on the drawing. An application for a license for an exotic dance studio shall include building plans which demonstrate conformance with NMC 5.10.100(D).

l. A copy of an approved and current conditional use permit to operate the adult entertainment business at the applicant’s proposed business location.

m. Subsections (A)(1)(i), (j) and (k) of this section shall not apply to adult bookstores, adult novelty stores or adult video stores that do not provide on-site entertainment.

2. An application shall be deemed to be complete upon the applicant’s provision of all information required above, including identification of “none” where that is the correct response, and the applicant’s verification that the application is complete. The clerk may request other information or clarification in addition to the information provided in a complete application where it is necessary to determine compliance with this chapter.

3. A nonrefundable application fee of $150.00 must be submitted with the completed application to defray the costs of processing the application.

4. Each applicant shall verify, under penalty of perjury, that the information contained in the application is true.

5. If, subsequent to the issuance of an adult entertainment license, any person or entity acquires a significant interest or responsibility for the management or operation of the licensed premises or the licensed business, notice shall be provided in writing to the clerk no later than 21 days following such acquisition. The notice shall include the information required from the original applicant and applicant control persons.

B. Adult Entertainment Business Manager and Entertainer Licenses.

1. No person shall work as a manager, assistant manager or entertainer at an exotic dance studio without a manager or entertainer license from the city. Each application for such a license shall be signed by the applicant and certified as true under penalty of perjury. All applications shall be submitted on a form supplied by the city, and shall require the following information:

a. The applicant’s name, home address, home telephone number, date and place of birth, fingerprints taken by city police department employees, social security number, and any stage names or nicknames used in entertaining.

b. The name and address of each adult entertainment business at which the applicant intends to work.

c. Documentation that the applicant has attained the age of at least 18 years. Acceptable proofs of age include: a motor vehicle license issued by any state bearing the applicant’s photograph and date of birth; a state issued identification card bearing the applicant’s photograph and date of birth; an official passport issued by the United States of America; an immigration card issued by the United States of America; or any other identification that the city determines to be acceptable.

d. A complete statement of all convictions of the applicant for any misdemeanor or felony violations in this or any other city, county, or state within five years immediately preceding the date of the application, except parking violations or minor traffic infractions.

e. A description of the applicant’s principal activities or services to be rendered.

f. Two two-by-two inch color photographs of the applicant, taken within six months of the date of the application and showing only the full face of the applicant.

g. Authorization for the city, its agents and employees to investigate and confirm any statements set forth in the application.

2. An application shall be deemed to be complete upon the applicant’s provision of all information required above, including identification of “none” where that is the correct response, and the applicant’s verification that the application is complete. The clerk may request other information or clarification in addition to the information provided in a complete application in order to determine compliance with this chapter.

3. A nonrefundable application fee of $100.00 shall be submitted with the completed application to defray the costs of processing the application.

4. Each applicant shall verify, under penalty of perjury, that the information contained in the application is true. (Ord. 98-181 § 1).

5.10.050 Processing of license applications.

A. Adult Entertainment Business Licenses.

1. Upon receipt of a complete adult entertainment business license application and fee as set forth in NMC 5.10.040, the clerk shall provide copies of the application to the police, fire, building and community development departments for their investigation and review to determine compliance of the proposed adult entertainment business with the laws and regulations which each department administers. Each department shall, with 30 days of the date of such application, inspect the application and premises and make a written report to the clerk as to whether such application and premises complies with the laws administered by that department. No license may be issued unless each department reports that the application and premises comply with the relevant laws. In the event the premises is not yet constructed, the departments shall base their recommendation as to premises compliance on their review of the drawings submitted in the application. Any exotic dance studio license approved prior to premises construction shall contain a condition that the premises may not open for business until the premises has been inspected and determined to be in substantial conformance with the drawings submitted with the application. A department shall recommend denial of a license under this subsection if it finds that the applicant or proposed adult entertainment business is not in conformance with the requirements of this chapter or other law in effect in the city. A recommendation for denial shall cite the specific reason therefore, including applicable laws.

2. An adult entertainment business license shall be issued by the clerk within 30 days of the date of filing a complete license application and fee, unless the clerk determines that the applicant has failed to meet any of the requirements of this chapter, failed to provide any information required under this subsection, or made a false, misleading or fraudulent statement of material fact on the application for a license. The clerk shall grant an extension of time in which to provide all information required for a complete license application upon the request of the applicant. If the clerk finds that the applicant has failed to meet any of the requirements for issuance of an adult entertainment business license, the clerk shall deny the application in writing and shall cite the specific reasons therefor, including applicable law.

3. If the clerk fails to issue or deny the license within 30 days of the date of filing of a complete application and fee, the applicant shall be permitted, subject to all other applicable laws, to operate the business for which the license was sought until notification by the clerk that the license has been denied, but in no event may the clerk extend the application review time for more than an additional 20 days.

B. Adult Entertainment Business Manager or Entertainer Licenses.

1. Upon receipt of a complete adult entertainment business manager or entertainer license application and fee as set forth in NMC 5.10.040, the clerk shall provide a copy of the license application to the police and any other applicable department for its review, investigation and recommendation.

2. An adult entertainment business manager or entertainer license shall be issued by the clerk within 14 days from the date the complete application and fee are received unless the clerk determines that the applicant has failed to provide any information required to be supplied according to this chapter, has made any false, misleading or fraudulent statements in the application, or has failed to meet any of the requirements for issuance of a license under this chapter. If the clerk determines that the applicant has failed to qualify for the license applied for, the clerk shall deny the application in writing and shall cite the specific reasons therefor, including applicable laws.

3. An applicant for an adult entertainment business manager or entertainer license shall be issued a temporary license upon receipt of a complete license application and fee. The temporary license will automatically expire on the fourteenth day following the filing of the complete application and fee, unless the clerk has failed to approve or deny the license application in which case the temporary license shall be valid until the clerk approves or denies the application, or until the final determination of any appeal from a denial of the application. In no event may the clerk extend the application review time for more than an additional 20 days.

4. Every adult entertainer shall provide his or her license to the manager on duty on the adult entertainment business premises prior to his or her performance. The manager shall retain the licenses of adult entertainers and make the licenses readily available for inspection by the city at any time during business hours of the adult entertainment business. (Ord. 98-181 § 1).

5.10.060 Denial of application for license.

A. Adult Entertainment Business License. The clerk shall deny an application for an adult entertainment business if:

1. The applicant is under 18 years of age.

2. The applicant is overdue on its payment to the city of taxes, fees, fines, or penalties assessed against it in relation to an adult entertainment business.

3. The applicant or an applicant control person has been convicted of any crime or offense involving prostitution, promoting prostitution, or transactions involving controlled substances (as that term is defined in Chapter 69.50 RCW) in the five years immediately preceding the license application.

4. The applicant has failed to provide information required by the license application or has made, with the intent to mislead, a materially false representation in the application for a license under this chapter.

5. The applicant has failed to comply with any provision or requirement of this chapter.

6. The applicant has had an interest in any license granted under this chapter revoked within six months from the date of application.

B. Adult Entertainment Business Manager or Entertainer License. The clerk shall deny an application for an adult entertainment business manager or entertainer license if:

1. The applicant is under 18 years of age.

2. The applicant has been convicted of any crime or offense involving prostitution, promoting prostitution, or transactions involving controlled substances (as that term is defined in Chapter 69.50 RCW) in the five years immediately preceding the license application.

3. The applicant has failed to provide information required by the license application or has made, with the intent to mislead, a materially false representation in the application for a license under this chapter.

4. The applicant has failed to comply with any provision or requirement of this chapter. (Ord. 98-181 § 1).

5.10.070 License renewal.

A. The licenses described in this chapter shall expire annually on December 31st. Applications for renewal of licenses must be made to the clerk no later than 30 days prior to the expiration of adult entertainment business, manager and entertainer licenses. A renewal license shall be issued in the same manner and upon payment of the same license fees as the original application under this chapter. All applicants shall present their current license for verification of identity, and upon issuance of the renewed license, shall surrender the expiring license to the clerk. There shall be assessed and collected by the clerk, an additional charge of 25 percent of the license fee on an application not made on or before the date provided herein.

B. The clerk shall renew a license upon application if it complies with all provisions of the chapter as now enacted or as the same may hereafter be amended, unless the clerk is aware of facts that would disqualify the applicant from being issued the license for which renewal is sought. (Ord. 98-181 § 1).

5.10.080 Other license requirements.

A. Duty to Supplement.

1. Applicants for a license under this chapter shall have a continuing duty to supplement promptly required application information if the information changes from what is stated on the application.

2. If any person or entity acquires an interest in the licensed premises or the licensed business subsequent to the issuance of an adult entertainment business license for places offering adult entertainment, an agent of the licensed adult entertainment business shall immediately notify the city clerk in writing of the acquisition. The notice shall include the information required to be provided for the original adult entertainment business. The failure to supplement the application on file with the clerk regarding such change in ownership interest, within 30 days of the date of such change shall be grounds for suspension or revocation of a license.

3. Any new or additional applicants or applicant control persons must be qualified according to the provisions of this section and the premises must be inspected and found to be in compliance with health, fire, and building codes of the city.

4. The fact that an applicant or applicant control person possesses other types of state or city permits and/or licenses does not exempt the applicant or applicant control person from the requirement of obtaining an adult entertainment business license.

B. License Nontransferable. No license or permit issued pursuant to this chapter shall be assignable or transferable. For purposes of this chapter, “assignable” or “transferable” shall mean and include any of the following:

1. The sale, lease or sublease of the business; or

2. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means; or

3. The establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law.

C. Name and Place of Business. No person granted a license pursuant to the chapter shall operate an adult entertainment business under a name not specified in the license, nor shall he or she conduct business under any designation or location not specified in the license.

D. Posting and Display of License.

1. The adult entertainment business license, if granted, shall state on its face the name of the person or persons to whom it is issued, the expiration date and the address of the licensed adult entertainment business. The license shall be posted in a conspicuous place at or near the entrance of the licensed premises so that it can be easily read at any time the business is open.

2. The license of the adult entertainment business manager on duty shall be prominently posted during business hours.

3. Entertainer licenses need not be posted, but must be available on the premises when the entertainer is on the premises for immediate inspection by any city official or law enforcement agency having jurisdiction. Managers’ and entertainers’ licenses must be endorsed by the clerk for the business premises for which the manager is managing and the entertainer is entertaining.

4. Photocopies and other forms of reproduction shall not be acceptable as proof of issuance of any license required under this chapter.

E. Violation. Any violation of the provisions of this section is a misdemeanor as set forth in this chapter. (Ord. 98-181 § 1).

5.10.090 Appeal.

A. Denial of License. Any person aggrieved by the action of the clerk in refusing to issue or renew any license issued under this chapter shall have the right to appeal such action to the city’s hearing examiner, or to such other hearing body as may hereafter be established by the city council for the hearing of license appeals, by filing a notice of appeal with the clerk within 10 days of notice of the refusal to issue or renew. The hearing examiner or other hearing body shall set a date for hearing such appeal, to take place within 45 days of the date of receipt of the notice of appeal. At such hearing, the appellant and other interested persons may appear and be heard, subject to the rules and regulations of the hearing body. The hearing examiner or other hearing body shall render its decision on the appeal within 15 days following the close of the appeal hearing.

B. Appeal to the Superior Court. The decision of the hearing body shall be final and conclusive unless, within 10 days of the date of the decision, any person aggrieved by the decision makes application to the King County Superior Court for a writ of review, prohibition or mandamus. (Ord. 98-181 § 1).

5.10.100 Standards of conduct and operation – Exotic dance studios.

A. The following standards of conduct must be adhered to by employees of any exotic dance studio while in any area in which members of the public are allowed to be present:

1. No manager, entertainer or employee shall be unclothed or in such less than opaque and complete attire, costume or clothing so as to expose to view any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, except upon a stage at least 18 inches above the immediate floor level and removed at least eight feet from the nearest member of the public.

2. No manager, entertainer or employee mingling with members of the public shall be unclothed or in less than opaque and complete attire, costume or clothing as described in subsection (A)(1) of this section, nor shall any male employee or entertainer at anytime appear with his genitals in a discernibly turgid state, even if completely and opaquely covered, or wear or use any device or covering which simulates the same.

3. No manager, entertainer or employee mingling with members of the public shall wear or use any device or covering exposed to view which simulates the breast below the top of the areola, vulva, genitals, anus, any portion of the pubic region, or buttocks.

4. No manager, entertainer or employee shall caress, fondle or erotically touch any member of the public. No manager, entertainer or employee shall encourage or permit any member of the public to caress, fondle or erotically touch any manager, entertainer or employee.

5. No manager, entertainer or employee shall perform actual or simulated acts of sexual conduct as defined in this chapter, or any act which constitutes a violation of Chapter 7.48A RCW, the Washington Moral Nuisances Statute.

6. No manager, entertainer or employee mingling with members of the public shall conduct any dance, performance or exhibition in or about the nonstage area of the exotic dance studio unless that dance, performance or exhibition is performed at a distance of no less than four feet from any member of the public.

7. No tip or gratuity offered to or accepted by an entertainer may be offered or accepted prior to any performance, dance or exhibition provided by the entertainer. No entertainer performing upon any stage area shall be permitted to accept any tip or gratuity offered directly to the entertainer by any member of the public. Any gratuity offered to any entertainer performing upon any stage area must be placed into a receptacle provided for receipt of gratuities by the exotic dance studio or provided through a manager on duty on the premises. Any gratuity or tip offered to any adult entertainer conducting any performance, dance or exhibition in or about the nonstage area of the exotic dance studio shall be placed into the hand of the entertainer or into a receptacle provided by the entertainer, and not upon the person or into the clothing of the entertainer.

B. At any exotic dance studio, the following are required:

1. Admission must be restricted to persons of the age of 18 years or older. It is unlawful for any owner, operator, manager or other person in charge of an exotic dance studio to permit knowingly or to allow any such person under the minimum age to be in or upon such premises.

2. Neither the performance nor any photograph, drawing, sketch or other pictorial or graphic representation thereof displaying any portion of the breasts below the top of the areola or any portion of the pubic hair, buttocks, genitals and/or anus may be visible outside of the exotic dance studio.

3. No member of the public shall be permitted at any time to enter into any of the nonpublic portions of the exotic dance studio, which shall include, but are not limited to: the dressing rooms of the entertainers or other rooms provided for the benefit of employees, and the kitchen and storage areas; provided, that persons delivering goods and materials, food and beverages, or performing maintenance or repairs to the premises or equipment on the premises may be permitted into nonpublic areas to the extent required to perform their job duties.

C. The responsibilities of the manager of an exotic dance studio shall include, but are not limited to:

1. A licensed manager shall be on duty on the premises of the exotic dance studio at all times that adult entertainment is being provided or members of the public are present on the premises. The name and license of the manager shall be prominently posted during business hours. The manager shall be responsible for verifying that any person who provides adult entertainment within the premises possesses a current and valid entertainer’s license.

2. A manager shall not perform as an entertainer on those days during which he or she acts as a manager on duty of the exotic dance studio.

3. The manager or an assistant manager licensed under this chapter shall maintain visual observation of each member of the public at all times any entertainer is present in the public or performance areas of the exotic dance studio. Where there is more than one performance area, or the performance area is of such size or configuration that one manager or assistant manager is unable to visually observe, at all times, each adult entertainer, each employee, and each member of the public, a manager or assistant manager licensed under this chapter shall be provided for each public or performance area or portion of a public or performance area visually separated from other portions of the exotic dance studio.

4. The manager shall be responsible for and shall assure that the actions of the members of the public, adult entertainers and all other employees shall comply with all requirements of this chapter.

D. Premises – Specifications.

1. Performance Area. The performance area of the exotic dance studio where adult entertainment is provided shall be a stage or platform at least 18 inches in elevation above the level of the patron seating areas, and shall be separated by a distance of at least eight feet from all areas of the premises to which members of the public have access. A continuous railing at least three feet in height and located at least eight feet from all points of the performance area shall separate the performance area and the patron seating areas. The stage and the entire interior portion of cubicles, rooms or stalls wherein adult entertainment is provided must be visible from the common areas of the premises and at least one manager’s station. Visibility shall not be blocked or obstructed by doors, curtains, drapes or any other obstruction whatsoever.

2. Lighting. Sufficient lighting shall be provided and equally distributed throughout the public areas of the premises so that all objects are plainly visible at all times. A minimum lighting level of 30 lux horizontal, measured at 30 inches from the floor and on 10-foot centers is established for all areas of the exotic dance studio where members of the public are admitted.

3. Signs. A sign at least two feet by two feet, with letters at least one inch in height shall be conspicuously displayed in the public area(s) of the premises stating the following:

THIS EXOTIC DANCE STUDIO IS REGULATED BY THE CITY OF NEWCASTLE. ENTERTAINERS ARE:

A. NOT PERMITTED TO ENGAGE IN ANY TYPE OF SEXUAL CONDUCT.

B. NOT PERMITTED TO APPEAR SEMI-NUDE OR NUDE, EXCEPT ON STAGE.

C. NOT PERMITTED TO ACCEPT TIPS OR GRATUITIES IN ADVANCE OF THEIR PERFORMANCE.

D. NOT PERMITTED TO ACCEPT TIPS DIRECTLY FROM PATRONS WHILE PERFORMING UPON ANY STAGE AREA.

4. Recordkeeping Requirements.

a. All papers, records and things required to be kept pursuant to this chapter shall be open to inspection by the clerk or the clerk’s designee during the hours when the licensed premises is open for business, upon two days’ written notice. The purpose of such inspections shall be to determine whether the papers, records, and things meet the requirements of this chapter.

b. Each exotic dance studio shall maintain and retain for a period of two years the name, address, and age of each person employed or otherwise retained or allowed to perform on the premises as an adult entertainer, including independent contractors and their employees. This information shall be open to inspection by the clerk or the clerk’s designee during hours of operation of the business upon 24 hours’ notice to the licensee.

5. Inspections. In order to insure compliance with this chapter, all areas of licensed exotic dance studios which are open to members of the public shall be open to inspection by city agents and employees during the hours when the premises are open for business. The purpose of such inspections shall be to determine if the licensed premises are operated in accordance with the requirements of this chapter. It is expressly declared that unannounced inspections are necessary to insure compliance with this chapter.

E. Time of Operation. It is unlawful for any exotic dance studio to be operated or otherwise open to the public between the hours of 2:00 a.m. and 10:00 a.m.

F. Exemptions. This chapter shall not be construed to prohibit:

1. Plays, operas, musicals, or other dramatic works that are not obscene;

2. Classes, seminars and lectures which are held for serious scientific or educational purposes and which are not obscene; or

3. Exhibitions, performances, expressions or dances that are not obscene.

These exemptions shall not apply to the sexual conduct described in RCW 7.48A.010(2)(b).

G. Determination of “Obscene.” Whether or not activity is obscene shall be judged by consideration of the following factors:

1. Whether the average person, applying contemporary community standards, would find that the activity taken as a whole appeals to a prurient interest in sex;

2. Whether the activity depicts or describes in a patently offensive way, as measured against community standards, sexual conduct as described in RCW 7.48A.010(2)(b); and

3. Whether the activity taken as a whole lacks serious literary, artistic, political or scientific value. (Ord. 98-181 § 1).

5.10.110 Standards of conduct and operation – Adult arcades, adult motion picture theaters and other adult entertainment businesses providing on-site entertainment.

A. A licensee shall not permit any doors to public areas on the premises of an adult arcade, motion picture theater or other adult entertainment business providing on-site entertainment to be locked during business hours.

B. Any room or area on such adult entertainment business premises that is open to members of the public shall be readily accessible at all times for inspection by any law enforcement officer or license inspector.

C. Admission shall be restricted to persons of the age of 18 years or more and it shall be unlawful for any owner, operator, manager or employee of an adult entertainment business to knowingly permit or allow any person under the age of 18 years to be in or upon such premises.

D. No patron shall be unclothed or in such attire, costume or clothing so as to be in a state of nudity or engage in any specified sexual activity and no owner, operator, manager or employee shall knowingly allow such conduct in or upon the premises. (Ord. 98-181 § 1).

5.10.120 Standards of conduct and operation – Adult bookstores, novelty stores, video stores and other businesses whether or not qualifying as adult entertainment businesses.

A. Adult bookstores, adult novelty stores, adult video stores and other businesses that sell or otherwise distribute books, magazines, films, motion pictures, video cassettes, slides, or other visual representations which are characterized by the depiction or description of nudity or specified sexual activities, whether or not such businesses qualify as an adult entertainment business under this chapter and whether or not less than 20 percent of their stock-in-trade comes from the rental or sale of such items, shall be subject to the following requirements of conduct:

1. All such items as described in this subsection shall be physically segregated and closed off from other portions of the store so that these items are not visible and/or accessible from other portions of the store where nonadult entertainment material, if any, is displayed, sold or rented.

2. No advertising for such items shall be posted or otherwise visible, except where such items are authorized for display.

3. Signs readable at a distance of 20 feet shall be posted at the entrance to the business or the area where such items are displayed stating that persons under the age of 18 years are not allowed access to the area where such items are displayed.

4. The manager or attendant shall take responsible steps to monitor the area where such items are displayed to ensure that persons under 18 years of age do not access the age-restricted area.

5. Employees of such businesses shall check identification of persons who appear to be 18 years or under to insure that such items are not rented or sold to persons under the age of 18 years.

B. The rental or sale of obscene material as defined in NMC 5.10.100(G) to persons under the age of 18 years is prohibited. (Ord. 98-181 § 1).

5.10.130 Standards of conduct and operations – Adult arcades.

A. The interior of the show premises of an adult arcade shall be arranged in such a manner as to ensure that patrons are fully visible from the waist down, and all persons viewing such panorama pictures shall be visible from the common areas of such premises.

B. No more than one patron at a time shall be present in a booth, cubicle, room or stall wherein adult entertainment in an adult arcade is provided.

C. A licensee of an adult arcade shall maintain, at a minimum, illumination as required in this chapter for exotic dance studios generally distributed in all parts of the premises at all times when the facility is open or when members of the public are permitted to enter and remain therein. (Ord. 98-181 § 1).

5.10.140 License suspension and revocation.

A. The clerk may, upon the recommendation of the chief of police or designee, and as provided in this section, suspend or revoke any license issued under the provisions of this chapter at any time where the same was procured by fraud or false representation of fact; or for the violation of, or failure to comply with the provisions of this chapter by the licensee or by any of its servants, agents or employees when the licensee knew or should have known of the violations committed by his servants, agents or employees; or for the conviction of the licensee of any crime or offense involving prostitution, promoting prostitution, or transactions involving controlled substances (as that term is defined in Chapter 69.50 RCW) committed on the premises, or the conviction of any of its servants, agents or employees of any crime or offense involving prostitution, promoting prostitution, or transactions involving controlled substances (as that term is defined in Chapter 69.50 RCW) committed on the premises, when the licensee knew or should have known of the violations committed by its servants, agents or employees.

B. A license procured by fraud or misrepresentation shall be revoked. Where other violations of this chapter or other applicable ordinances, statutes or regulations are found, the license shall be suspended for a period of 30 days upon the first such violation, 90 days upon the second violation within a 24-month period, and revoked for a third and subsequent violations within a 24-month period, not including periods of suspension.

C. The clerk shall provide at least 10 days’ prior written notice to the licensee of the decision to suspend or revoke the license. Such notice shall inform the licensee of the right to appeal the decision to the hearing examiner or other designated hearing body and shall state the effective date of such revocation or suspension and the grounds for revocation or suspension. The licensee may appeal the revocation or suspension by filing a notice of appeal with the clerk before the effective date of the revocation or suspension. The hearing examiner or other hearing body shall set a date for hearing such appeal, to take place within 45 days of the date of receipt of the notice of appeal. The hearing examiner or other hearing body shall render its decision within 15 days following the close of the appeal hearing. The decision of the hearing examiner or other hearing body shall be final and conclusive unless, within 10 days of the date of the decision, any person aggrieved by the decision makes application to the King County superior court for a writ of review, prohibition or mandamus. The decision of the clerk shall be stayed during the pendency of any appeal, except as provided in this section.

D. Where the city building official or fire marshall or their designees or the applicable county health department find that any condition exists upon the premises of an exotic dance studio which constitutes a threat of immediate serious injury or damage to persons or property, the official may immediately suspend any license issued under this chapter pending a hearing in accordance with this section. The official shall issue notice setting forth the basis for the action and the facts that constitute a threat of immediate serious injury or damage to persons or property, and informing the licensee of the right to appeal the suspension to the hearing examiner or other designated hearing body under the appeal provisions set forth in subsection (C) of this section; provided, that a suspension based on threat of immediate serious injury or damage shall not be stayed during the pendency of the appeal. (Ord. 98-181 § 1).

5.10.150 Violation – Penalty – Misdemeanor.

Unless otherwise specified, a violation of any of the provisions of this chapter shall constitute a misdemeanor, and shall, upon conviction, be punished by a fine of not more than $1,000 or by imprisonment of not more than 90 days, or both. Each and every day during which any violation is committed, continued or permitted shall be deemed a separate offense; provided, that no person shall be deemed guilty of any violation of this chapter if acting in an investigative capacity pursuant to the request or order of the police chief or prosecuting attorney or duly appointed agent thereof. (Ord. 98-181 § 1).

5.10.160 Severability.

If any section, sentence, clause or phrase of this chapter should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this chapter. (Ord. 98-181 § 1).

Chapter 5.15
BUSINESS LICENSES

Sections:

5.15.010 Purpose.

5.15.020 Definitions.

5.15.030 Business license required.

5.15.040 Exceptions to business license requirements.

5.15.050 Application procedure.

5.15.060 Issuance of business license.

5.15.070 Business license term and renewal.

5.15.080 Denial or revocation of business license.

5.15.090 Appeal of denial or revocation of business license.

5.15.100 License not construed to permit prohibited uses or activities.

5.15.110 Penalty.

5.15.010 Purpose.

The city council finds that, in order for the city to responsibly carry out the duties and authorities delegated to it by the Washington State Constitution and the laws of the state of Washington as a noncharter code city, maintenance of current information with respect to business, trade, service, commercial and professional activities carried on within the city is necessary and essential to the public health, safety and welfare. The city council further finds that such information can best be accumulated and maintained on a current basis through the establishment of a program for the licensing and registration of such activities. (Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.020 Definitions.

For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the following meaning:

A. This chapter incorporates by reference all definitions set forth in Chapter 82.04 RCW, as now existing or as hereafter amended, except where a conflicting definition is stated in this chapter.

B. “Business” includes all vocations, occupations, professions, enterprises, establishments, and all other kinds of activities and matters intended to generate revenue or conducted for private profit or benefit, either directly or indirectly, within the city’s jurisdiction, except when said vocation, occupation or otherwise is an undertaking primarily involving the use of land in the city for agricultural purposes. Solicitors, transient merchants, peddlers and street peddlers are businesses for the purposes of this chapter.

C. “City license officer” means the director of finance or the director’s designee.

D. “Peddler” shall have the same meaning as set forth in NMC 5.08.010(B).

E. “Soliciting” or “solicitor” shall have the same meaning as set forth in NMC 5.08.010(E).

F. “Transient merchant” shall have the same meaning as set forth in NMC 5.08.010(F). (Ord. 2005-312 § 2; Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.030 Business license required.

A. Every business shall obtain from the city license officer a general business license before commencing business. The license shall be nontransferable.

B. It shall be unlawful for any person to conduct any business, either directly or indirectly, for which a license is required by any law or ordinance of the city, without first procuring and maintaining said license in effect at all times as required by this chapter or other law or ordinance of the city.

C. If more than one business is conducted or operated on a single premises, a separate license shall be required for each business. If a business is conducted or operated on more than one premises in the city, a separate license shall be required for each premises in the city.

D. Every business shall post the license issued to the business pursuant to this chapter on the premises of the business. Every transient merchant, peddler or street peddler shall have in his or her possession at all times, while conducting business as such, the license issued pursuant to this chapter. (Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.040 Exceptions to business license requirements.

The license requirements of this chapter shall not apply to the following:

A. Tax-Exempt Organizations. Any organization holding a current IRS 501(c)(3) exemption certificate issued by the Internal Revenue Service shall, upon filing a true and correct copy of the same with the city, be exempt from the license and license fee requirements of this chapter; provided, that the organization shall file a license application form with the city for information purposes only.

B. Municipal Corporations. Municipal corporations and other governmental agencies shall be exempt from the license and license fee requirements of this chapter; provided, that each municipal corporation or other governmental agency shall file a license application form with the city for information purposes only.

C. Religious Organizations. The nonbusiness activities of religious organizations are exempt from the provisions of this chapter; provided, that any religious organization which carries on any business activity for which it may be required by federal law to file a federal income tax return shall, to that extent only, be subject to the license and license fee requirements of this chapter.

D. Adult Entertainment Businesses. Adult entertainment businesses that are licensed under Chapter 5.10 NMC shall be exempt from the license and license fee requirements of this chapter. (Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.050 Application procedure.

A. Applications for business licenses shall be made in writing to the city license officer upon a form provided by the city. The application shall require:

1. The name, nature and address(es) of the business;

2. The name and address of the owner of or authorized agent for the business;

3. An emergency notification name and address;

4. The number of employees of the business; and

5. Any other information deemed necessary by the city license officer to process the application.

B. If the applicant for the business license is a partnership, the application shall be made by one of the partners of the business. If the applicant is a corporation, the application shall be made by one of the officers of the corporation. If the applicant is a foreign corporation or partnership, or a nonresident individual, the application shall be made by the resident agent or the local manager of the corporation, partnership or individual.

C. On and after January 1, 2000, at the time the applicant submits the business license application, the applicant shall deposit with the city license officer the required annual business license fee in the amount established by resolution. A license fee submitted with a business license application shall not be prorated based upon the date of filing of the business license application.

D. Upon receipt of an application from a new business or a business relocating to a new building, the finance director shall forward the business license application to the department of planning and community development and, where appropriate, the director of the department of planning and community development shall forward the application to the appropriate agencies with jurisdiction to determine if the applicable state standards for hazardous waste management have been met. (Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.060 Issuance of business license.

Upon receipt of a complete business license application form, with fee attached, the city license officer shall cause an investigation and review of the application to be made by the appropriate city officials. The city license officer shall approve or deny the license application within 30 days of the date of filing of the application. If the city license officer fails to issue or deny the license within 30 days of the date of filing of a complete application and fee, the applicant shall be permitted, subject to all other applicable laws, to operate the business for which the license was sought until notification by the city license officer that the license has been denied; provided, that in no event may the city license officer extend the application review time for more than an additional 20 days. (Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.070 Business license term and renewal.

A. Term. Business licenses required by this chapter shall be issued or renewed annually. Subject to the revocation provisions of this chapter, a business license shall be valid as of the date of the issuance of the license and shall expire 12 months thereafter.

B. Renewal. Business licenses required by this chapter shall be renewed within 30 days of the expiration date of the business license. Any business that fails to obtain a renewed license and pay the renewal business license fee established by resolution within the time provided by this section shall pay, in addition to the license fee, a late charge equal to 50 percent of the license fee. (Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.080 Denial or revocation of business license.

A. The city license officer may deny an application for a business license or renewal of a business license, or revoke a business license previously issued, upon the following grounds:

1. The making of a false statement of material fact in the application for a business license or in any data or information required to be submitted with such application; or

2. With respect to businesses in which the applicant or licensee, or any agent or employee of the applicant or licensee, may enter private residences or transport members of the public, any conviction of the applicant or licensee of a felony or of a misdemeanor involving an intent to defraud, or any conviction of any agents or employees of a felony or of a misdemeanor involving an intent to defraud committed while acting within the scope of their employment.

B. If an application is denied, or license revoked, by the city license officer, the officer shall set forth in writing the reasons for the denial, and shall mail the written denial or revocation, via certified mail, return receipt requested, to the applicant at the mailing address set forth in the application. The written denial or revocation shall state that the city license officer’s decision shall be final, unless the applicant or license holder files a written appeal with the city license officer within 15 days of the date of the written denial or revocation.

C. The city license officer shall, upon denial of the application, refund all license fees paid in advance by the applicant.

D. Upon the denial or revocation of a business license, the applicant shall not engage in the business for which the license was denied or revoked unless and until the city license officer re-issues the license pursuant to a decision or judgment requiring the re-issuance. (Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.090 Appeal of denial or revocation of business license.

Within 10 days after receiving a timely submitted written appeal of a business license denial or revocation, the city license officer shall fix a time and place for the appeal and shall provide the applicant or business holder at least 10 days’ written notice of the hearing date, time and place. Notice of the hearing shall be personally delivered or mailed via certified mail, return receipt requested. Pursuant to Chapter 2.20 NMC, the hearing examiner shall hear all appeals made pursuant to this section within 60 days of the filing of the written appeal. (Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.100 License not construed to permit prohibited uses or activities.

Notwithstanding any provisions in this chapter to the contrary, a business license shall not be issued to any person who uses or occupies, or proposes to use or occupy, any real property or who conducts, or proposes to conduct, any business in violation of the provisions of any city ordinance or state statute. The granting of a business license shall in no way be construed as permission or acquiescence in a prohibited activity or other violation of the law. (Ord. 2000-228 § 1; Ord. 99-203 § 1).

5.15.110 Penalty.

Any person violating or failing to comply with any provision of this chapter shall have committed a civil infraction and shall be punished pursuant to the general penalty provisions of Chapter 1.10 NMC. For the purposes of this chapter, each day or portion of a day that a violation of any provision of this chapter occurs or continues to occur shall constitute a separate offense. (Ord. 2000-228 § 1; Ord. 99-203 § 1).