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HomeMy WebLinkAboutOrdinances_2421_CCv0001.pdf ORDINANCE NO. 2421 AN URGENCY ORDINANCE OF THE CITY OF REDLANDS, AMENDING CHAPTER 8.76 OF THE DLANDS MUNICIPAL CODE TO PROVIDE FOR PROMPT REVIEW OF APPLICATIONS FOR PERMITS OR OTHER ENTITLEMENTS FOR ADULT-ORIENTED BUSINESSES WHEREAS,in 1998,the Ninth Circuit Court of Appeals held in Baby Tam&Company.Inc. v., City of Los Angeles(1998)1 54 F. 3d 1097 that Las Vegassexually-oriented adult entertainment business permitting process was an invalid and improper"prior restraint"of free speech because an applicant could not be assured of"prompt judicial review" ofa denial of a permit; and WHEREAS, in July, 1999, the Ninth Circuit Court of Appeals held in 4805 Convoy Inc. v. City of San Diego 1999 D.A.R. 7159, that San Die gos procedures for suspending and revoking adult entertainment business< licenses were inadequate and must include procedural safeguards;- incl ding afeguards,including the Baby Tam requirement of prompt judicial review; and WHEREAS, Senate Bill No, 1165 has been enacted as urgency legislation and codified as Code of Civil Procedure Section 1094.8 "in order for judicial actions or proceedings reviewing the issuance, revocation, suspension or denial of a permit or other entitlement for expressive conduct protected by the First Amendment to the United States Constitution to proceed to hearing and have a decision rendered in an expeditious manner consistent with Constitutional requirements in view of the holding in Baby Tam &Company, Inc.. v City of Las Vegas (1998) 154 F,3d 1097;" and WHEREAS, the purpose for this ordinance is to establish a permitting process for the City of Redlands which ensures that permit applications for adult-oriented businesses receive prompt judicial review of any permit denials, revocations, nonrenewals or suspensions, along with establishing a process for appeal, and WHEREAS,the City Council of the City of Redlands("this City Council")desires to ensure that the City is not without locational,licensing and operational regulations governingthe time,place DJMord2421.wpdLE and manner under which adult-oriented businesses may be established and operated within the City along with the right for appeal, by providing for expedited review, including judicial review pursuant to Code of Civil Procedure Section 1094.8; and WHEREAS, the finding's and purposes set forth in Ordinance No. 2345, establishing and regulating zoning regulations applicable to adult-oriented businesses are hereby incorporated by reference; and WHEREAS, the provisions of this ordinance have neither the purpose nor the effect of imposing a limitation or restriction on the content of communicative materials,including sexually- oriented materials,nor is the effect of this ordinance to restrict access by adults to sexually-oriented materials protected by the First Amendment or to deny access by distributors and exhibitors or sexually-oriented entertainment to their intended market; and WHEREAS, nothing in this ordinance authorizes, legalizes or permits the establishment, operation or maintenance of any building or use which violates any City law or other statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter or the exhibition or public display thereof; and WHEREAS,adult-oriented businesses require special supervision by the City to protect and preserve the health, safety, morals and welfare of the patrons of such businesses as well as the citizens of the City; and WHEREAS, adult-oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual haisons, of a casual nature; and WHEREAS,the concern over sexually transmitted diseeses is a legitimate health concern of the City which demands reasonable regulation of adult-oriented businesses to protect the health and well-being of its citizens-, and DJMord2421,wpdLE 2 WHEREAS, registration and permitting are legitimate and reasonable means of accountability to ensure that operators of adult-oriented businesses comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation; and WHEREAS, there is convincing, documented evidence that adult-oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them C�' and their surrounding residential areas, causing increased crime and the ng downgradiof property downgrading values; and WHEREAS, it is recognized that adult entertainment businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and WHEREAS, this City Council desires to minimize and control these adverse effects and thereby protect the health, safety, and welfare of the citizenry, protect the citizens from increased crime, preserve the quality of live, preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight; and WHEREAS. it is not the intent of this ordinance to suppress any speech activities protected by the First Amendment, but to enact a content-neutral ordinance which addresses the adverse secondary effects of adult-oriented businesses; and WHEREAS, it is not the intent of the City Councilin adopting this ordinance to condone or legitimize the distribution of obscene material, and this City Council recognizes that State law prohibits distribution of certain materials and expects and encourages law enforcemen," officials to enforce state obscenity statutes against such illegal activities within the City; and DJMord2421.wpdLE 3 WHEREAS. Government Code Section 36937(b) authorizes this City Council, by a four- fifths vote of its members, to adopt an urgency ordinance for the immediate preservation of the peace, health and safety; THE CITY COUNCIL OF THE CITY OF REDLANDS DOES ORDAINS AS FOLLOWS: Section 1. Findings. A. The City Council, in adopting this ordinance, takes legislative notice of the existence, content and findings of the following studies and cases concerning the existence and regulation of adverse secondary effects of adult-oriented businesses in other cities. Phoenix, Arizona (1979), Garden Grove, California (1991), Los Angeles, California (1977), Whittier, California (1978), Indianapolis,Indiana(1984), Minneapolis, Minnesota (1980); Cleveland,Ohio(1977), Oklahoma City, Oklahoma (1986), Amarillo, Texas (1977), Austin, Texas (1986), Beaumont, Texas (1982), Houston,Texas (1983), Seattle, Washington (1989), Tucson, Arizona (1990), State of Minnesota, Attorney General Report (1989), Newport News, Virginia (1996), St. Paul, Minnesota (1987), Corpus Christi,Texas(1995),National law Center(1995), Young v. American Milli Theaters, Inc., 427 U.S. 50 (1976), City of Renton v. Playtime Theaters, Inc,, 47S U.S. 41 (198 fi), FWIPBS, Inc. v. Circ,of Dallas, 493 U.S. 215 (1990); and Barnes v. Glen Theater, Inc., 501 US. 5601 (1991), United States Court of Appeals 9th Circuit decisions, including but not limited to Topanga Press, Inc, v. City of Los Angeles, 989 F. 2d IS24(1993), and Spokane Arcade, Inc., v. City,of Spokane, 75 F. 3d 663 (1996), several California cases, including but not limited to City cif National City v. Weiner, 3 Cal. 4th 832 (1993), People v. Superior Court, (Lucero) 49 Cal. 3d 14 (1989), and Cit-N! of Vallejo v. Adult Books, 167 Cal. App. 3d 1169(1985),and other federal cases including Mitchell v. Commission on Adult Entertainment Establishment(3rd Cir. 1993) 10 F. 3d 123,Hang On, Inc. v. City of Arlington(5th Cir. 1995)65 F.3d 1248,Lakeland Lounge v. City ofJacksonville(5th Cir. 1992)973 R 2d 1255; Star Satellite, Inc. v. City elf Biloxi(5th Cir. 1986) 779 F. 2d 1.074,Marney v. Counry of Kenosha (7th Cir. 1996) 86 F 3d 692, International Eateries of America, Inc, v, Broward County (I It Cit. 1991) 941 F 2d 1157, U.S. v. Thevis, 665 F. 2d 618 (1982), Kev[tic. DJMord2421.wpd1_E 4 v. Kitsap Counn,(9th Cir. 1986) 793 F. 2d 1053,and Col acurcio v. Ciry(?f Kent 1998 WL 848036 (9th Cir.)-, B. This City Council finds that these studies and decisions (hereinafter the "Studies") are, in whole or in part, relevant to the problems addressed by the City of Redlands in enacting this ordinance to reaffirm and strengthen the regulation of the adverse secondary effects of Adult oriented businesses, and more specifically finds that the Studies provide convincing evidence that: 1. Adult oriented businesses are linked to and associated with increases in crime rates in those areas in which they are located and in surrounding areas; 2. Both the proximity of Adult oriented businesses to sensitive land uses and the concentration of Adult oriented businesses tend to result in the blighting and deterioration of the areas next to which, and near which, they are located. 3. There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by Adult oriented businesses,including but not limited to an increase in the crimes of narcotics distribution and use,prostitution,pandering and violence against persons and property. The Studies further establish convincing evidence that Adult oriented businesses which are not regulated as to permissible locations often have a deleterious effect on nearby businesses and residential areas,causing,among other adverse secondary effects,an increase in crime and a decrease in property values. 4. Based on the foregoing, this City Council finds and determines that special regulation of Adult oriented businesses is necessary to ensure that their adverse secondary effects will not cause or contribute to an increase in crime rates or the blighting or deterioration of the areas in which they are located or surrounding areas. Adult oriented businesses, for example, attract an undue number of transients and thus cause nearby residents and businesses to relocate. The need for such special regulation is based upon the recognition that Adult oriented businesses not only cause DJMord242LwpdLE 5 adverse secondary effects but have seriously objectionable operational characteristics, particularly when they are concentrated under certain circumstances or located in direct proximity to sensitive uses thereby having a deleterious effect upon adjacent areas, It is the purpose and the intent of this ordinance to prevent or mitigate such adverse secondary effects which may be caused by Adult oriented businesses, C. In enacting this ordinance,this City Council is mindful of legal principles relating to the regulation of Adult oriented businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States Constitution or by Article 1,Section 2 of the California Constitution:but instead desires to enact reasonable time,place and manner regulations that address the adverse secondary effects of Adult oriented businesses. D. This City Council also finds that locational criteria alone do not adequately protect the health,safety and general welfare of the citizens of the City; and thus certain requirements with respect to the ownership and operation of Adult oriented businesses are in the public interest. In addition to the findings and ,studies conducted in other cities regarding increases in crime rates, decreases in property values, and the blighting of areas in which such businesses are located, this City Council also tales legislative notice of the facts recited in the cases of Kev, Inc., I' Kusall County(9th Cir. 1986) 793 F. 2d 1053 and Colacurcio v City of Dent, 1998 WL 8 803 (9th Cir.), regarding how live adult entertainment results in adverse secondary effects such as prostitution,drub dealing, and otherlaw enforcement problems. E Zoning, permitting, licensing, and other police power regulations are legitimate, reasonable means of accountability to help protect the duality of life in Redlands and to help assure; that owners, operators and performers of Adult oriented businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects which naturally accompany the operation of such busiiiesses. F This City Council recognizes the possible harmful effects on children and minors l exposed to the secondary effects of Adult oriented businesses and the deterioration of respect for family values, and the need and desire of children and minors to stay away from and avoid such businesses, which causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses. This City Council desires to minimize and control the adverse secondary effects associated with the operation of Adult oriented businesses and thereby protect the health,safety,and welfare of the citizens of Redlands; and in particular the health,safety and welfare of children and minors in the City, protect the citizens from increased crime; preserve their quality of life, preserve property values and the character of surrounding neighborhoods and businesses, deter the spread of urban blight and protect against the threat to health from the spread of communicable and sexually transmitted diseases. G. Nothing in this ordinance is intended to authorize, legalize, or permit the establishment, operation or maintenance of any business, building or use which violates any applicable City ordinance or any statute of the State of California relating to public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof. K This City Council finds the following in'part, based upon its understanding of the judicial decisions and reports, the Studies and other documents in the public record. I Evidence indicates that some dancers,models,entertainers and other persons who publicly perform Specified Sexual Activities or publicly display Specified Anatomical Areas in Adult oriented businesses, as those terms are defined in the Redlands Municipal Code and this ordinance, have been found to engage in sexual activities with patrons of Adult oriented businesses on the sites of the Adult oriented businesses 2. Evidence indicates that the existence �'-?,f Adult oriented businesses which permit nudity has been shown in some cities such as Newport Beach and Anaheim, California, to increase the secondary effects of crime and decreased property values; DJMord242LwpdLE 7 I Evidence has demonstrated that entertainers employed by Adult Oriented Businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to observe and participate with the entertainers in live sex shows, 4Evidence indicates that entertainers at Adult oriented businesses have been found to engage in acts of prostitution with patrons of such establishments. and 5. As a result of the above, and the increase in the incidence of AIDS and Hepatitis B,which are both sexually transmitted diseases,this City Council has a substantial interest in adopting regulations which will reduce to the greatest extent possible, the possibility for the occurrence of casual sex acts at Adult oriented businesses, 1. In regulating nudity and semi-nudity in Adult oriented businesses, this City Council does not intend to proscribe the communication of erotic messages or any other communicative element or activity, but rather only to regulate such nudity due to the adverse secondary effects associated therewith; and J. This City Council also finds, as a wholly independent basis, that it has a substantial public interest in preserving societal order and morality, and that such interest is furthered by the regulation of nudity, and K While this City Council desires to protect the rights conferred by the United States and California Constitutions on Adult oriented businesses, it does so in a manner that ensures the continued and orderly development of property within the City and diminishes,to the greatest extent feasible,those undesirable secondary adverse effects which the Studies have shown to be associated with the development and operation of Adult oriented businesses, and L This City Council finds that preventing the direct exchange of money between entertainers and patrons also reduces the likelihood of drug and sexual transactions occurring in I)J.N,Iord242 l,wpdLE 8 Adult oriented businesses; and M. Requiring a ten foot separation between entertainers and patrons reduces the likelihood that such persons will negotiate narcotics sales or negotiate for the purpose of engaging in sexual activities or obtaining sexual favors within the Adult oriented businesses, and N Enclosed or concealed booths and;direly-lit areas within Adult oriented businesses greatly increase the potential for misuse of the premises,including unlawful conduct of a type which facilitates transmission of disease. Requirements that all indoor areae be open to view b ` management at all times,and that adequate lighting be provided are necessary in order to reduce the opportunity for,and therefore the incidence of illegal conduct within Adult oriented businesses,and to facilitate the inspection of the interior of the premises thereof by law enforcement personnel. Section 2. Section 8:76.{920 of the Redlands Municipal Code is hereby amended to read as; follows: "For the purposes of this Chapter}the following words and phrases shall have the Meanings respectively ascribed to there by this section: "Adult-Oriented Business" means any one of the following- 8. The terms ublc dance," "dancing club." or "public dance hall" mean,any public lace open to the public where the public may engage in dancing,,including places where admission thereto isby membership or other special privilege. Adult Entertainment.. The term `"Entertainment" means: A. Any act lav or review antomime, scene. dance act or song and dance act E DJMord a2 Lwpd . i performed by one or more persons, whether or not such person or persons are compensated for such performance., when erformed,inapublic,dance, hall, public dance, dancing club, dine and dance club, or night club or B. Any fashion or style show. excel2t- i. When the same is conducted by an all,private club_or anization or association as part of the social activities of such club: oLani7 ation or association, or is a Dart of the social Z activities of such club or association to where members,of thegeneral public are not invited,-or ii. When thesame is conducted by a pLerson as gart ofacommercial business which primarily involves the sale or manufacturer of wearing apparel, C: The fol lowi ngare also included in the term "adult entertainment." The presenceof any performer, dancer, employee, agent, model or person, collective) and/or individually referred to as "entertainer " in any place of entertainment as defined,in this Section, who engages in,any,specified sexual activity as that term is defined in this Cha ter not otherwise prohibited by local,state or federal law,who ex uses an anatomical part not otherwise prohibited by local,state or federal law,or who.12erforms in attire commonly referredtoas "Vasties" or a G-stripor.,any other oNque covering which does not expose the areola or nipples of the female breast, and while covering the natal cleft and jubic.-area covers less than one inch.on,-either side of the entire length of the natal cleft and two inches across the pubic.-area. Adult entertainment, as described in this subsection shall be subject to all regulations as described in this Cbapter. 10. "Notice" means written notice given by personal-service upon the addressee, or given by the-United States mail, postage re aid addressed to the person to be notified at his or her last known address., Service of such notice shall be effective upon the completion of personal service, upon the VIgging the same in the custody of the United States Postal Service. 11. "Permit" means a-permit re aired and issued under the provisions of this Code." Section 3. Section .7 .06013 of the Redlands Municipal Code is hereby amended to read as follows: DJMord2421.wpdLE 10 "8.76.060 Investigation and action on application. "B. Within thirty ter- business days of receipt of the completed application, Section 4. Section 8-76.070C is hereby added to the Redlands Municipal Code to read as follows: "C. Anv decision of Chief of Police to issue renew.-deny. end or revoke emit rrra be a ealed to the City Manager. Any,a - eal shall be filed within ten business days follnwin :notice of denial non�renefal sus erasion or revocation b the Chief raf I'uliee and shah state the grounds,Won which review is sought. Thea sal shall be heard b the Cit Man er.or his nr her designee,within fifteen business days fol,lowing the filing of the, ppeal: and the written findings and determination of the City Manager shall e ado ted within fifteen workin da sat the conclusion of thea sal heai`in . "The determination of the Cit Mana er shall las mailed, ossa e Prepaid,to the last known address cif the licant ertittee,or shall be delivered ersditall to the a licant/ ermittee within five days of the dere ninat on. At the hearing, all parties shall have a' ri lit to offer testirnortial doeurnentation and.tar► ible evidence on the issues ma be re resented: b le al counsels and shall have the ri ht to confront and crossearnine witnesses. n relevant. evidence;u on hieh reasonable arsons are accustomed to rel ori the conduct of serious matters maybe admitted. Any hearin under this section may be continued for a reasonable tiixre a an the concurrence of and for the convenience of the parties. If the Police Chief denies an initial or renewal errni ' or if a errn t has been sus ended or revoked. and the gggrieved a licantC ertnittee tint el z commences an Deal to review the validit of the denial sus ension or revocation. upon written re gest of the a licant/ ert ittee the Cit shrill issue ate ora unit andira the;final deternatnation on the a sal. The tern orar rmit shall remain in effect throe hoot the administrative axag Drocess and far nines; d i s followin the:administrative determination. In tie event the lieantt errnittee fails tar refuses to seek udicial review within such nines da s the tem orar errrit shall thereon e ire without further notice and thea licant/ rmittee shall eases all o rations thereunder tin tern Diary errrxit issued ursuant to this section shall not ermittee ma thereafter QjLeal_thcCitN,' Manager's decisitan to the Cit Council as the final hearin bod . The eel shall be filed within ten, business days., ill be held la the Cit Council it the next re Marl scheduled City Council—m—e—e—t—in&— All decisions made by the Cit y.founcil t+ -issue. renew a nermit shall become find five calendar davs after mailing its nntu-e,of determination. After an final denial non-renewal,sus ensign car re ocatitan of a errni authorized b,, this Cha ter the appficagjeppiittee review of such decision,in any court of competent jurisdiction asprovided by law,,12ursu suant to the gipedited judicial reyview_sett forth in California Cade of Ciil Procedure 1119 . If'udicial review is time] sou ht ursuant to California Code of Civil Procedure ,1094.8,and tern pora gy germit that,has been issued continue in effect until affinall decision has been rendered by a judicial officer. In the event that the deniallsus enson�reocaton is a held:.. the teed ora..': eranit shall ex ire without further' notice and thea licantl errnittee shall cease all o erations thereunder. The issuance or extension of aterry orar rit shall not constitute or be deerraed a cora usable vested ri ht<" Section 5. Section 8,76.130M is hereby added to the Redlands Municipal code to read as follows: ,,M. Additional regrulation&that apl2ly,to this Chapter and shall-Aggjyjg.all addlt-oriented businesses as—tollows-, Iadult-oriented business,shall Memit to lye performed offer t ierform or allow atrons to erfta sexual intercourse, oral or anal coptilation fondlir car stimulation cal human e Mals ubic re pion.buttocks or female breasts. DJMord2421 wfxiLF 12 No operator.,entertainer or employee of an adult oriented business shall encourage or permit any person upon the premises to touch,caress. or fondle, the breasts,buttocks anus or genitals of any other person. I No adult-oriented business operator or other person with managerial control over an adult oriented business shall t)ermit-Mperson on the premises of the, adult oriented business to engage in a live.,showing of the human male or female Mnital&_Vubic area or buttocks with less than a fully opaque covering and/or the female breasts with less than a full y-op4que coveringoverany pArt, of the,nipple,or areola and/or covered male genitals in a discemibly-fur gLd state, This sub- section may not be corn lied by applying anopague covering simulating thea earance of the specific anatomical part required to be covered, 4. No l2atron shall directly-pay or ive any gratuity to any adult entertainer and no adult entertainer shall accell2t any pay or gratuity directly.from any patrons. gratuities ma v be nlaced in or on receptaclgs,located at least six J61 feet from adult entertainers. 5. No adult, entertainer,, either before, during or after-per-formances, shall have any physical,contact with any2gLron and no patron shall have.physisal contact with an entertainer either before, durina or after performancei—by such adult entertainer. This subsection shall_onlygpplyto physical,contact on thepre�ises_of the adult oriented business. 6. An adult oriented business shall ern to security aguards if it is determined by the Chief of Police that their presence is necessary in order to maintain public,peace and safety and to prevent ani agile gaillactivity from occurring on the premises. T The adult oriented business shall not conduct any massage, acupuncture. body wrapping, tattooing. acupressure, fortune-telling or escort services on thepEe�Jses., & The adult oriented business shall provide a security system that visually records and DINford-74 2 1.,ApdLE- 13 monitors all parking lot areas, at all times that the business is ol2en or occupied for business. 9. Views of 12arking areas and doorways of adult oriented businesses shall be unobstructed_$o,as to allow visibility of these areas from the public right-of-ways." Section.6. This ordinance is enacted as an urgency ordinance for the immediate preservation of the public peace, health and safety as set forth above. It is the purpose of this ordinance to regulate adult oriented businesses and to promote the health,safety,morals and general welfare of the citizens of Redlands, and to establish reasonable and uniform regulations to prevent deleterious location and concentration of adult oriented businesses as an urgency ordinance,and shall be effective pursuant to Government Code § 36937(b) and shall take effect immediately upon the date of its adoption. ADOPTED, SIGNED AND APPROVED this 7th day of September, 1999. s/ Wilharn E. Cunningham William E. Cunningham, Mayor ATTEST: s/ Lorrie Poyzer City Clerk DJMord242[,%&TdLE 14 1, Lornie Poyzer, City Clerk of the city of Redlands, hereby certify that the foregoing ordinance was duly adopted by the City Council at a regular meeting thereof held on the 7th day of September, 1999, by the following vote: AYES: Councilmembers Banda, Gilbreath, George, Freedman; Mayor Cunningham NOES: None ABSENT: None ABSTAIN: None s/ Lorrie Poyzer City Clerk, City of Redlands monitors all parking lot areas. at all times that the business is open or occupied for business. 9. Views of parking areas, and doorways of adult oriented businesses shall be unobstructed so as to allow visibility of these areas froth the public right-of-ways." Section 6. This ordinance is enacted as an urgency ordinance for the immediate preservation of the public peace, health and safety as set forth above. It is the purpose of this ordinance to regulate adult oriented businesses and to promote the health,safety,morals and general welfare of the citizens of Redlands, and to establish reasonable and uniform regulations to prevent deleterious location and concentration of adult oriented businesses as an urgency ordinance,and shall be effective pursuant to Government Code § 36937(b) and shall take effect immediately upon the date of its adoption. ADOPTED, SIGNED AND APPROVED this 7th day of September, 1999, William E. Cunningham, Mayor ATTEST: 7--T— fit erk LJ DJMord2421 wpdLE 14 1, Louie Poyzer, City Clerk of the city of Redlands, hereby certify that the foregoing 4::1 ordinance was duly adopted by the City Council at a regular meeting thereof held on the 7th day of September, 1999, by the following vote: AYES: Councilmembers Banda, Gilbreath, George, Freedman; Mayor Cunningham NOES: None ABSENT: None ABSTAIN: None Cityllerk-, intyof Rtq Od