§ 3-8. Permits for extended hours for alcoholic beverage establishments.

(a)

Purpose and findings. The increase in the number of bars, nightclubs, restaurants, and other establishments licensed to sell alcoholic beverages in the City has caused an increase in the number of people in the downtown area and other locations in the City at any given time. The downtown area is a small area with a large number of these establishments in close proximity. At night, this large concentration of establishments and greater number of persons has at times created certain negative impacts and a need for an increase in security and law enforcement personnel. The increased patronage of persons at such establishments at other locations in the City has also, at times, created certain negative impacts and a need for an increase in security and law enforcement personnel. It is reasonable and appropriate for these establishments to provide for the security needs of their patrons to help mitigate the impacts created by their operations. The ability to sell, offer for sale, deliver or permit to be consumed upon the premises any alcoholic beverage beyond midnight on any day of the week is hereby declared to be, and is, a privilege subject to modification, suspension or termination by the City. No person or establishment may reasonably rely on a continuation of that privilege. As a condition of the continuation of this privilege, these establishments should take all necessary steps to minimize or eliminate the negative impacts that their establishment may cause. The implementation of the permit process in this section is a necessary first step to achieve this goal.

(b)

Prohibition. No owner, manager or employee (hereinafter collectively the "permittee") of an establishment dealing in alcoholic beverages for consumption on the premises within the City (hereinafter "establishment") may sell, offer to sell, deliver, serve or permit the consumption of any alcoholic beverages after midnight unless the establishment has an extended hours permit (hereinafter "permit") from the City and is in compliance with all conditions of the permit. "Dealing in alcoholic beverages" shall mean, but not be limited to, the sale, offering to sell, delivering, serving or permitting the consumption of alcoholic beverages. For the purposes of this section, an establishment shall include but is not limited to, bottle clubs, clubs, restaurants, bars, caterers of catered events and any other establishment for which the on premise consumption of alcohol is permitted but shall not include a restaurant which serves its full dinner menu (not a limited menu such as a "bar" menu, "late night" menu, etc,) during the time alcohol is sold for consumption on the premises. The provisions of this section shall not impair or impact an establishment's ability to remain open prior to midnight.

(c)

Application required. Any establishment that desires to remain open for business after midnight on any night shall make an application for a permit.

(d)

Application. The application for a permit shall be on the form provided by the POD accompanied by the application fee set forth in chapter 12. The applicant shall complete the application by providing all the information requested, including but not limited to the name and address where notices related to this section are to be served. Service to this address shall be deemed valid service. The POD may request any information reasonably necessary to issue the permit.

(1)

The POD shall review the application and, if the application is complete, a permit shall be issued which allows the establishment to sell, serve and dispense alcoholic beverages after midnight until the permitted closing hour (currently 3:00 a.m.). The POD may deny a permit if the applicant, or if the applicant is not an individual (eg. corporation, partnership, etc.) if any principal (eg. officer, director, partner, business manager, etc.) of the applicant, was directly associated with a permittee that had a permit revoked and that revocation is still in effect.

(2)

If the permitted closing hour changes, the permit shall allow the establishment to sell, serve and dispense alcoholic beverages until the new permitted closing hour. The permit shall be conspicuously posted near the alcoholic beverage license for the establishment. The establishment must have a current business tax receipt before an extended hours permit may be issued. The extended hours permit may be shown on the business tax receipt.

(3)

Permittees shall amend the application that is on file with the POD within 30 days if any of the information set forth on the application form changes. In the event that there has been a change in ownership or a change in location of the establishment, the permittee shall immediately notify the POD and a new application shall be processed after payment of the required fee.

(4)

Each permit shall expire at midnight on September 30. The permit may be renewed annually after payment of a renewal fee as set forth in chapter 12, unless the permit has been suspended or revoked by the POD or the state beverage license has been revoked. If an establishment fails to renew the permit, it shall not remain open after midnight. Any renewal application received by the POD after September 30 shall be subject to the payment of a late fee of 30 percent of the renewal fee for each month, or any portion thereof, after September 30 (e.g. an applicant applying on October 1 shall owe an additional 30 percent late fee, an applicant applying on November 1 shall owe another 30 percent late fee).

(5)

If an establishment has a sidewalk café area, a condition of every permit shall be that the establishment shall have an approved, current, valid sidewalk café permit, prior to approval of the permit or renewal. If the establishment does not have a valid sidewalk café permit and is in a DC zoning district, the establishment shall post a sign on the exterior of the establishment facing the street right-of-way, which sign shall be at least one foot by two feet, containing substantially the following information in letters not less than two inches in height: It is unlawful to consume alcoholic beverages on the sidewalk in front of this establishment.

(e)

Acceptance of, and operation pursuant to, a permit shall be deemed to be the approval, permission and authorization by the owner of the establishment for any law enforcement officer to enter the establishment, when such establishment is open, and conduct a search to determine whether any provisions of law are being violated. "Open," for the purpose of this section, shall mean any time members of the public are inside the establishment, whether or not they have paid a fee to enter or whether or not their presence is pursuant to a private event. It is unlawful for any permittee to refuse to permit a lawful inspection of the establishment at any time it is open.

(f)

Although not required, law enforcement officers may, at their discretion, issue oral or written warnings that shall not be considered a notice of violation, to put an establishment on notice that a particular problem or problems must be addressed and could result in a notice of violation, or suspension or revocation of the permit, if not corrected.

(g)

Penalty. The penalty for operating an establishment after midnight without a valid permit, in violation of any provision of this section, or of failing to comply with any condition of a permit, shall be a $500.00 fine. The City may initiate any other actions to ensure compliance with this section.

(h)

Suspension and revocation.

(1)

Suspension. The Chief of Police may suspend a permit for 30 days if the Chief determines that a permittee has committed any one or more of the following acts and that the permittee has not taken reasonable actions to prevent future occurrences:

a.

Two or more convictions for violating the same provision of the City Code relating to the operation of the establishment within two years which violations negatively impact the safety or security of patrons;

b.

Engaged in, or allowed, the use of alcoholic beverages at the establishment after closing hours by any person;

c.

Refused to allow an inspection of the establishment as authorized by this section;

d.

Knowingly permitted the use of controlled substances at the establishment, or should have known of the use of a controlled substance and has not taken the necessary actions to prevent future occurrences;

e.

Knowingly permitted gambling by any person at the establishment;

f.

Knowingly permitted, or should have known of, the possession or consumption by a minor of an alcoholic beverage at the establishment, or the sale to a minor of an alcoholic beverage at the establishment, or allowed a minor to enter and remain at the establishment;

g.

Convicted of violating any condition of a permit;

h.

Provided inadequate security on more than two occasions in a year. The Chief shall notify the establishment in writing, by hand delivery to the establishment and first class mail to the permittee, within ten calendar days of each occasion when there has been inadequate security and how the security was inadequate. Inadequate security means, for the purposes of this section, that a violent crime occurred at the establishment or in the right-of-way abutting the establishment, that could have been avoided with the implementation of one or more security measures including but not limited to: the establishment did not provide at least one security officer per each 150 occupants or any portion thereof (bartenders, barbacks and other employees with duties unrelated to security shall not be counted as a security officer), did not wand patrons on entry, or did not have full video surveillance of all public areas at the establishment with signs posted which warn the public.

i.

Failure to comply with any condition of an approved security plan.

(2)

Suspensions will continue for the full 30 days and no permit shall be issued during the suspension for the establishment.

(3)

Revocation. The Chief may revoke a permit if the permit is suspended twice within any 12-month period or if the Chief determines that a permittee has committed any one or more of the following acts and that the permittee has not taken reasonable actions to prevent future occurrences:

a.

The permittee has given false or misleading information in the material submitted during the application process;

b.

The permittee has knowingly allowed the sale of controlled substances or any derivative thereof at the establishment;

c.

The permittee allowed a member of the public to enter the establishment, and allowed the person to be served or to consume any alcoholic beverage, during a period of time when the permit was suspended.

(4)

A revocation is effective for one year. The permittee shall not be issued a permit for the establishment, or any other establishment, for one year from the date the revocation became final. If, subsequent to revocation, the Chief determines that the basis for the revocation action has been corrected or abated, or determines that the permittee has taken action to ensure that the basis for the revocation will not occur again, which action(s) the Chief reasonably believes will ensure that the basis for the revocation will not occur again, the permittee may be granted a new permit if at least 90 days have elapsed since the date the revocation became final. The permittee shall reapply for a new permit in the same manner as for the initial permit.

(5)

Notice of a suspension or revocation shall be made in writing, by hand delivery to the establishment and first class mail to the permittee at the address provided in the application. The notice shall identify the length of the suspension or revocation and the date of the first and last day the suspension or revocation is effective.

(6)

For a suspendable offense, prior to and in lieu of suspension, the permittee may implement a security plan approved by the Chief which the Chief reasonably believes will ensure that the basis for the suspension will not occur again. The security plan shall include specific measures to address any concerns the Chief may have. In addition to the concerns related to the suspendable offense, the Chief may consider any other issues with the establishment in approving a security plan. Other issues may relate to any citizen complaints, city code issues or law enforcement issues or responses to calls. Conditions of the security plan may include, but are not limited to, requirements for the hiring of off duty law enforcement officers, private interior security persons, doormen, wanding of patrons, installation of security cameras, and employee training. Requirements for the hiring of officers or employees may be limited to certain days. The security plan shall be in effect for six months. Payment for the cost of off duty law enforcement officers shall be made in advance or an acceptable plan for payment must be made which must be approved by the Chief. If this option is used by a permittee, it shall still count as a suspension for the purposes of revocation.

(7)

The fact that a conviction is being appealed shall have no effect on the suspension or revocation of the permit.

(i)

Appeals. If the Chief denies the issuance or renewal of a permit or suspends or revokes a permit, the Chief shall deliver to the permittee, by hand delivery to the establishment and first class mail to the permittee at the address provided in the application, written notice of the action and the right to an appeal.

The permittee may appeal the decision of the Chief to the City Council by following the procedures set forth in Chapter 16 for appeals. The filing of an appeal stays the action of the Chief in suspending or revoking a permit or denying a renewal until the City Council makes a final decision. If during the pendency of a stay, the permittee commits any other violation of this section which would warrant suspension or revocation, the Chief may suspend or revoke the permit as provided herein, subject to any appeal. If upheld on appeal, or if not appealed, suspensions would be applied consecutively and a revocation could be applied instead of a suspension, as provided in this section.

(1)

The City Clerk shall set the date for the hearing as soon as is reasonably possible, however, not more than 30 days from the date the written appeal is received.

(2)

The City Council shall hold a public hearing to hear and consider evidence offered by any interested person to determine whether the Chief properly denied issuance or renewal of a permit, or properly suspended or revoked the permit in accordance with the provisions of this section.

(3)

The City Council shall determine whether the Chief properly suspended, revoked or denied the issuance or renewal of the permit and shall approve or deny the appeal by majority vote of the Council Members present. Failure to reach a majority vote to approve the appeal is a denial of the appeal. Decisions of the City Council shall be final decisions.

(Ord. No. 58-H, § 1, 12-6-2012; Ord. No. 126-H, § 1, 8-28-2014)