§ 1070.17.2.

LIMITED SUSPENSION BY THE DIRECTOR; APPEAL TO ENTERTAINMENT COMMISSION

a.

GROUNDS FOR SUSPENSION. The Director may suspend any permit issued under this Article for a period of up to seven days if the Director determines, after providing the Permittee and the Manager at least five days written notice and an opportunity to respond, that any of the circumstances set forth in Subsections (a)(1), (2) or (3) of this Section has occurred. Each order of limited suspension may include multiple violations under Subsections (a)(1), (2), or (3) of this Section. The Director shall provide the written notice required under this Subsection either by mail and electronically or by personal delivery.

1.

The Business has exceed the allowable noise emissions under Section 49 or Article 29 of the San Francisco Police Code, or as required under any condition imposed on the permit, on three separate days within a three month time period. The Director may suspend a permit under this Subsection (a)(1) only if:

i.

The San Francisco Police Department, the Director, or an authorized agent of either has issued a noise emission report for each violation showing noise levels that exceed those allowed under Section 49 or Article 29 of the San Francisco Police Code, or as required under any condition imposed on the permit, and

ii.

The Director has provided notice of the issuance of each noise emission report described in Subsection (a)(1) to the Permittee or the Manager electronically or by mail within three City business days of its issuance.

2.

The Permittee or any employee or agent of the Permittee has engaged in Conduct that Constitutes a Nuisance or the Permittee has failed to take reasonable steps within the Permittee’s control to halt another Person from engaging in Conduct that Constitutes a Nuisance. “Conduct that Constitutes a Nuisance” as defined in Section 1070(e), means any conduct that would constitute a violation of the following laws: assault and battery (Cal. Penal Code § 240, 242, 245); sexual battery (Cal. Penal Code § 243.4); discharging firearm (Cal. Penal Code § 246, 246.3); unlawful weapons (Cal. Penal Code § 12020; S.F. Police Code § 1291); disturbing the peace (Cal. Penal Code § 415, 416, 417); unlawful threats (Cal. Penal Code § 422); obstruction of pedestrian or vehicle right-of-way (Cal. Penal Code § 370); gambling (Cal. Penal Code §§ 330, 337a); rape (Cal. Penal Code § 261); statutory rape (Cal. Penal Code § 261.5); prostitution and related offenses (Cal. Penal Code §§ 266, 266a, 266e, 266h, 266i, 315, 316, 647(b)); sex crimes for which registration is required under the Sex Offender Registration Act (Cal. Penal Code § 290); felony sexual assault; loitering for lewd or lascivious purposes (Cal. Penal Code § 647(d)); loitering on private property without lawful business (Cal. Penal Code § 647(h)); identify theft (Cal. Penal Code § 530.5); a violent felony warranting enhancement of a prison term (Cal. Penal Code § 667.5); criminal gang activity (Cal. Penal Code § 186.22); drug offenses (Cal. Health & Safety Code §§ 11351, 11352, 11359, 11360, 11378, 11379, 11378.5, 11379.5); violation of Alcohol Beverage Control laws (Cal. Business & Professions Code §§ 23300, 25602, 25631, 25657, 25658); public urination or defecation (San Francisco Police Code § 153); accumulation of filth (Cal. Health & Safety Code § 17920.3(j)); or excessive noise emissions (San Francisco Police Code Section 49 or Article 29).

This Subsection (a)(2) applies only when both of the following apply:

i.

The conduct occurred on the premises of, or on Any Sidewalk Abutting the Premises of, the Business, and

ii.

The conduct continued after the Director had notified the Permittee of the problem and informed the Permittee of Corrective Action, as defined in Section 1070, to address the problem, but the Permittee failed to take the Corrective Action.

3.

The Permittee or any agent or employee of the Permittee has failed to comply with an approved Security Plan as required by Section 1060.28 or a revised Security Plan as required by Section 1060.29.

(b) (1) OF ORDER; RIGHT TO APPEAL TO COMMISSION. On the day that the Director issues an order of limited suspension, the Director shall send the order to the Permittee and Manager by mail or electronically. The order shall state the date that the order issued and the date that it takes effect. To provide the Permittee with an opportunity to file an appeal to the Entertainment Commission, an order of limited suspension shall not take effect for at least five City business days from the date that the Director issues the order.

2.

A Permittee may appeal an order of limited suspension to the Entertainment Commission by filing with the Commission Secretary a written request for review within five City business days of the date that the Director has issued the order. The filing of an appeal stays the order pending the Commission’s decision. If a Permittee withdraws the appeal, the Director’s order shall no longer be stayed and shall take effect on the date of the withdrawal or the date that the order was to take effect, whichever is later.

3.

The Commission may affirm, overturn, or modify the Director’s order. When the Commission affirms or modifies the Director’s order, the order takes effect the day following the day of the hearing at which the Commission made its determination.

4.

If the Permittee does not file a timely appeal of the Director’s order, the order shall take effect the day after the time to appeal has expired or the effective date set forth in the order, whichever is later; provided, however, that the Director and the Permittee may agree in writing to an earlier effective date.

5.

The Entertainment Commission may adopt a regulation establishing a procedure which would allow the Director or the Commission, or both, to stay and vacate an order of limited suspension if the Permittee submits and complies with a plan to address the problems that gave rise to the suspension.

c.

The Director shall initiate suspension proceedings before the Commission under Section 1070.17.1 against any Business that is suspended by the Director under this Section three times in any twelve-month period. For purposes of this Subsection (c), “suspended by the Director” includes a suspension affirmed in whole or part or modified by the Commission if appealed pursuant to Subsection (b)(2) but does not include a suspension overturned by the Commission on appeal. This Subsection (c) shall not in any way preclude the Commission from otherwise exercising its authority to suspend a Business under Section 1070.17.1, or preclude the Director or Chief of Police or Chief’s designee from initiating a suspension proceeding under Section 1060.17.1.

d.

POLICE DEPARTMENT RECOMMENDATION OF LIMITED SUSPENSION BY THE DIRECTOR. The Chief of Police, or the Chief’s designee, may recommend to the Director, orally or in writing, that the Director suspend a permit in accordance with the grounds for suspension stated in Subsection (a) above. If the recommendation is oral, it shall later be reduced to writing and filed with the Director when the permits. If the Director fails to follow the oral or written recommendation, the Director shall report to the Entertainment Commission both the recommendation and the reason or reasons for not following the recommendation. This report shall occur at the next regular Commission meeting subsequent to the recommendation, consistent with the provisions of the Brown Act and Sunshine Ordinance. For purposes of this Subsection (d), the Captain for the district where the Place of Entertainment is located, or the Captain’s designee, is deemed the Chief’s designee unless the Chief of Police directs otherwise.

This Subsection (d) shall not preclude any Police Officer from recommending to the Director that the Director suspend a permit in accordance with the grounds for suspension stated in Subsection (a) above.

History

(Added by Ord. 238-09, File No. 080324, App. 11/20/2009)

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