f:\atty\muni\laws\mjm\adultretailrevised.doc
City Council
Meeting 9-27-05
ORDINANCE NUMBER (CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF
AMENDING CHAPTER 9.44 OF THE SANTA MONICA MUNICIPAL CODE
RELATING TO SEXUALLY-ORIENTED BUSINESSES
WHEREAS,
WHEREAS, the City Council wishes to protect residents’ quality of life by, among other things, ensuring to the extent possible that businesses do not operate in a way which unduly disrupts or threatens residential neighborhoods; and
WHEREAS,
WHEREAS, the City Council wishes to protect the safety, welfare and quality of life of all Santa Monicans, particularly children and others who are less able to protect themselves; and
WHEREAS, in addition to being a residential community,
WHEREAS, the Council wishes to recognize and protect the rights of all business owners; and
WHEREAS, sexually-oriented businesses have secondary impacts on surrounding neighbors and their quality of life; and
WHEREAS, the City
Council hereby takes legislative notice of the existence and content of the
following studies concerning the adverse secondary side effects of
sexually-oriented businesses in other cities:
Garden Grove, California (1991); Tucson, Arizona (1990); Seattle,
Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986);
Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982);
Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California
(1978); Amarillo, Texas (1977);
Cleveland, Ohio (1977); and Los Angeles, California (1977); St. Paul,
Minnesota (1987); Newport News, Virginia (1996); Times Square, New York (1994);
New York, New York (1994); and
WHEREAS, the City
Council finds that these studies are relevant to the problems addressed by the
City in enacting this ordinance to regulate the adverse secondary side effects
of sexually-oriented businesses; and
WHEREAS, the City Council finds that these studies provide convincing evidence that: (1) sexually-oriented businesses are linked to increases in the crime rates in the businesses’ vicinity and in surrounding areas for crimes such as narcotics use and distribution, prostitution, pandering, and violence against persons and property; (2) both the proximity of sexually-oriented businesses to sensitive land uses and the concentration of sexually-oriented businesses tend to result in the blighting and deterioration of the areas in which they are located lowering property values; (3) the proximity and concentration of sexually-oriented businesses adjacent to residential, recreational, religious, educational and other sexually-oriented business uses can cause residents and businesses to relocate; and
WHEREAS, in developing this
Ordinance, the City Council is mindful of legal principles relating to
regulation of adult businesses, and the City Council does not intend to
suppress or, infringe upon any expressive activities protected by the First
Amendment of the United States and California Constitutions but instead desires
to enact reasonable time, place, and manner
regulations that address the adverse secondary effects of adult businesses. The
City Council has considered decisions of the United States Supreme Court
regarding local regulation of adult businesses, including but not limited to: City
of Littleton, Colorado v. ZJ Gifts D 4, 541 U.S. 744 (2004); City of Los
Angeles v. Alameda Books, 535 U.S. 425 (2002); City of Erie v. Pap’s
A.M. (“Kandyland”), 529 U.S. 277 (2000); FW/PPBS, Inc. v. City of Dallas,
493 U.S. 215 (1990); City of Renton v. Playtime Theatres, Inc., 475 U.S.
41 (1986); and Young v. American Mini Theaters, Inc., 427 U.S. 50
(1976); decisions of the United States Court of Appeals for the Ninth Circuit,
including but not limited to: Gammoh v. City of La Habra, 395 F.3d 1114
(9th Cir. 2005), ptn. for rehearing denied and opinion amended 402 F.3d
875; Dream Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004); World
Wide Video v. City of Spokane; 368 F.3d 1186 (9th Cir. 2004); Center for
Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Diamond
v. City of Taft, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531
U.S. 1072 (2001); Isbell v. City of San Diego, 258 F.3d 1108 (9th Cir.
2001); Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000), cert.
denied 531 U.S. 1104 (2001); Lim v. City of Long Beach, 217 F.3d
1050 (9th Cir. 2000), cert. denied 121 S.Ct. 1189 (2001); Baby Tam
& Co., Inc. v. City of Las Vegas ("Baby Tam I"), 154 F.3d
1097 (9th Cir. 1998); Baby Tam :& Co., Inc. v. City of Las Vegas
("Baby Tam II"), 199 F.3d 1111 (9th Cir. 2000); Baby Tam &
Co., Inc. v. City of Las Vegas ("Baby Tam III"), 247 F.3d 1003
(9th Cir. 2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108
(9th Cir. 1999); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d
1524 (9th Cir. 1993), cert. denied 511 U.S. 1030 (1994); Kev, Inc. v.
Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent,
163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053 (2000); Bryan
H. Crawford v. Daniel E. Lungren, 96 F.3d 380 (9th Cir. 1996); Ellwest
Stereo Theatres, Inc. v. Paul Wenner, 681 F.2d 1243 (9th Cir.
1982); Tollis, Inc. v. San Bernardino County, 827 F.2d 1329 (9th
Cir. 1987); Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102
(9th Cir. 1988); several California cases, including but not limited
to: Tily B., Inc. v. City of Newport Beach, 69 CaI.App.4th 1 (1998); City
of National City v. Wiener, 3 Cal.4th 832 (1993), cert. denied 510
U.S. 824; People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); Department
of Alcoholic Beverage Control v. Alcoholic Beverage Appeals Board of California
("Vicary"), 99 CaI.App.4th 880 (2002); City of Vallejo v.
Adult Books, 167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064
(1986); Wayne C. Berry v. City of Santa Barbara, 40 Cal.App.4th
1075 (1995); City of Stanton v. Cox, 207 Cal.App.3d 1557 (1989); J.L.
Thomas v. County of Los Angeles, 232 Cal.App.3d 916 (1991) ; and other
federal and state cases, including but not limited to: SOB, Inc. v. County
of Benton, 317 F.3d 856, 863 (8th Cir. 2003); Lakeland Lounge v. City of
Jacksonville, 973 F.2d 1255 (5th Cir. 1992), cert. denied 507 U.S.
1030 (1993); International Eateries v. Broward County, 941 F.2d 1157
(11th Cir. 1991), cert. denied 503 U.S. 920 (1992); Lady J. Lingerie,
Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); Executive
Arts v. City of Grand Rapids, 391 F.3d 783 (6th Cir. 2004); Z.J. Gifts D-4, L.L.C. v. City of Littleton,
311 F.3d 1220 (10th Cir. 2002); Encore Videos, Inc. v. City of
San Antonio, 330 F.3d 288, (5th Cir. 2003), as amended 352
F.3d 938 (5th Cir. 2003); Williams v. Attorney General of
WHEREAS, based on the foregoing, the City Council finds and determines that special regulation of sexually-oriented businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increase in crime rates or to the blighting or deterioration of the areas in which they are located or surrounding areas; and
WHEREAS, the need for such special regulations is based upon the recognition that sexually-oriented businesses have serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances or located in direct proximity to sensitive uses such as parks, schools, churches, thereby having a deleterious side effect upon the adjacent areas; and
WHEREAS, one purpose and intent of these special regulations is to prevent the concentration of sexually-oriented businesses and thereby prevent such adverse secondary side effects; and
WHEREAS, the local requirements established by this ordinance do not unreasonably restrict the establishment or operation of constitutionally-protected sexually-oriented businesses in the City, and a sufficient reasonable number of appropriate locations for sexually-oriented businesses are provided by this Ordinance; and
WHEREAS, zoning, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the City and to help assure that all operators of sexually-oriented businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects which naturally accompany the operation of such business; and
WHEREAS, the Council recognizes the possible harmful effects on children and minors exposed to the effects of such sexually-oriented businesses 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 a neighborhood where such businesses are concentrated; and
WHEREAS, the potential for such harmful side effects on children and minors is a particular concern in Santa Monica because so many schools, playgrounds and other facilities routinely frequented by children are in or near commercial areas; and
WHEREAS, the Council desires to minimize and control the adverse secondary side effects associated with the operation of sexually-oriented businesses and thereby protect the health, safety, and welfare of the citizens of the City; and
WHEREAS, the Council desires to protect the citizens of the City from increased crime, preserve the 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; and
WHEREAS, while the Council respects and desires to protect the rights conferred by the United States Constitution upon sexually-oriented businesses, the Council intends to protects those rights in a manner that ensures the continued and orderly economic development of property within the City and diminishes, to the greatest extent feasible, those undesirable secondary effects which the aforementioned studies have shown to be associated with the development and operation of sexually-oriented businesses;
WHEREAS, it is not the intent of the City Council in enacting this Ordinance or any provision thereof to condone or legitimize the distribution of obscene material, and the City and its Council recognize that State law prohibits the distribution of obscene materials and expect and encourage law enforcement official to enforce State obscenity statutes against such illegal activities in the City; and
WHEREAS, the City Council does not intend to regulate in
any area preempted by
WHEREAS, 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 City ordinance or any 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,
NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF
CHAPTER 9.44
SEXUALLY-ORIENTED BUSINESSES
Section 9.44.010. Statement of purpose.
It is the purpose and intent of this Chapter to regulate the operations of sexually-oriented businesses, which have judicially recognized adverse secondary effects, including, but not limited to, increases in crime in the vicinity of adult businesses; decreases in property values in the vicinity of adult businesses; increases in vacancies in residential and commercial areas in vicinity of adult businesses; interference with residential property owners’ enjoyment of their properties; and the deterioration of neighborhoods. Special regulation of these businesses is necessary to prevent these adverse secondary effects while at the same time protecting the First Amendment rights of those individuals who desire to own, operate or patronize adult businesses. It is therefore the purpose of this Chapter to establish reasonable and uniform regulations to prevent the concentration of sexually-oriented businesses or their close proximity to incompatible uses, while permitting the location of sexually-oriented businesses in certain areas.
Section 9.44.020. Location of Sexually-oriented businesses.
It shall be unlawful to operate or cause to be operated a
sexually-oriented business except as provided in this Code:
(a) Sexually-oriented businesses shall be considered a permitted use only in Designated Commercial Districts. Sexually-oriented businesses shall be prohibited in all other zoning districts in the City.
(b) Within the Designated
Commercial Districts , no person shall cause or permit the establishment of any
sexually-oriented business within 500 feet
of any, religious institution, school public park, public library, public playground,
or residential district , or within 1,000 feet of another sexually-oriented business.
The required separation distance between
sexually-oriented businesses and any of the uses specified above shall be
measured in a straight line from the closest points on the property lines of
each site.
(c) No more than one sexually-oriented business may be operated or maintained in the same building, structure, or portion thereof.
Section 9.44.030. Definitions.
(A)
“Adult-oriented merchandise” shall mean any goods, products, commodities
or other ware, including, but not
limited to videos, CD ROMs, DVDs, computer disks or other storage devices,
magazines, books, pamphlets, posters, cards, periodicals, or non-clothing
novelties which depict, describe, or simulate specified sexual activities or
specified anatomical areas.
(B) “Designated
Commercial Districts” shall mean the C3, C3C, C4, C5, LMSD, M1, and BSC
Districts.
(C) “Distinguished
or characterized by an emphasis upon” shall mean and refer to the dominant or
essential theme of the object described by such phrase. For instance, when the phrase refers to films
“which are distinguished or characterized by an emphasis upon” the depiction or
description of specified sexual activities or specified anatomical areas, the
films so described are those whose dominant or predominant character and theme
are the depiction of the enumerated sexual activities or anatomical areas.
(D) “Establishment
of a sexually-oriented business” shall
mean and include any of the following:
(1) The opening or
commencement of any sexually-oriented business as a new business.
(2) The conversion
of an existing business, whether or not a sexually-oriented business, to any
sexually-oriented business defined herein.
(3) The addition
of any of the sexually-oriented businesses defined herein to any other existing
sexually-oriented business.
(4) The relocation
of any such sexually-oriented business.
(E) “Regularly features” shall mean a regular and substantial course of conduct. Live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical area or specified sexual activities which occur on four (4) or more occasions within a thirty (30) day period; six (6) or more occasions within a sixty (60) day period; or eight (8) or more occasions within a one hundred eighty (180) day period shall be deemed to be a regular and substantial course of conduct.
(F) “Religious
Institution” shall mean church, convent, monastery, synagogue, mosque, or other
place of religious worship.
(G) “Residential
Districts” shall mean the R1, R2, R2R, R2B, R3, R3R, R4, RVC, R-MH, OP1, OP-D,
OP2, OP3, and OP4 Districts or any other district designated by the City
Council as a residential district.
(H) “School” shall mean any child or day care center, or an institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained pursuant to standards set by the State Board of Education, This includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, charter school, or any special institution of education or work training program for physically and mentally disabled adults, but does not include a vocational or professional institution of higher education, including a community or junior college, or college or university.
(I)
“Sexually-oriented businesses” shall mean any of the following:
(1) “Adult arcade”
shall mean an establishment where, for any form of consideration, one or more
still or motion picture projectors, or similar machines, for viewing by five
(5) or fewer persons each, are used to show films, computer generated images,
motion pictures, video cassettes, slides or other photographic reproductions
thirty (30) percent or more of the number of which are distinguished or
characterized by an emphasis upon the depiction, simulation, or acting out of
specified sexual activities or specified anatomical areas.
(2) “Adult cabaret”
shall mean a nightclub, restaurant, or similar business establishment which:
(1) regularly features live performances which are distinguished or
characterized by an emphasis upon the display of specified anatomical areas or
specified sexual activities; (2) which regularly features persons who appear
semi-nude; or (3) shows films, computer generated images, motion pictures,
video cassettes, slides or other photographic reproductions thirty (30) percent
or more of the number of which are distinguished or characterized by an
emphasis upon the depiction, simulation, or acting out of specified sexual
activities or specified anatomical areas.
(3) “Adult
hotel/motel” shall mean a hotel or motel or similar business establishment
offering public accommodations for any form of consideration which: (1)
provides patrons with closed-circuit television transmissions, films, computer
generated images, motion pictures, video cassettes, slides or other
photographic reproductions thirty (30) percent or more of the number of which
are distinguished or characterized by an emphasis upon the depiction, simulation,
or acting out of specified sexual activities or specified anatomical areas; and
(2) rents, leases, or lets any room for less than a six (6) hour period, or
rents, leases or lets any single room more than twice in a 24 hour period.
(4) “Adult motion picture
theater” shall mean a business establishment where, for any form of
consideration, films, computer generated images, motion pictures, video
cassettes, slides or similar photographic reproductions are shown, and thirty
(30) percent or more of the number of which are distinguished or characterized
by an emphasis upon the depiction, simulation, or acting out of specified
sexual activities or specified anatomical areas.
(5) “Adult retail
use establishment” shall mean an establishment that has thirty (30) percent or
more of its stock in adult oriented merchandise.
(6) “Adult theater”
shall mean a theater, concert hall, auditorium, or similar establishment which,
for any form of consideration, regularly features live performances which are
distinguished or characterized by an emphasis on the display of specified
anatomical areas or specified sexual activities.
(J) “Specified Sexual Activities” shall mean:
1. Human genitals in a state of sexual stimulation or arousal;
2. Sex acts, actual or simulated, including acts of masturbation, sexual intercourse, oral copulation, or sodomy; or
3. Fondling
or other erotic touching of human genitals, pubic region, buttock, anus, or
female breasts.
4. Excretory functions as part of or in connection with any of the other activities described in subdivisions (1) through (3) of this subsection (J).
(K) “Specified Anatomical Areas” shall mean:
1. Less than completely and opaquely covered
(a) Human genitals, pubic region;
(b) Buttock; and
(c) Female breast below a point immediately above the top of the areola; or
2. Human male
genitals, less than completely and opaquely covered, or human male genitals in
a discernably turgid state, even if completely and opaquely covered.
3. Any device,
costume, or covering that simulates any of the body parts included in
subdivisions (1) or (2) of this subsection.
(L) “Stock” shall
mean any of the following:
(1) The business
devotes thirty percent (30%) or more of the retail floor area to merchandise
that is distinguished or characterized by an emphasis upon Specified Sexual
Activities or Specified Anatomical Areas.
(2) The business
devotes thirty percent (30%) or more of its annual retail inventory (measured
by the number of items or the consumer retail price of the inventory) to
merchandise distinguished or characterized by an emphasis upon Specified Sexual
Activities or Specified Anatomical Areas.
(3) The retail value of merchandise that is
distinguished or characterized by an emphasis on Specified Sexual Activities or
Specified Anatomical Areas is thirty percent (30%) or more of the total retail
value of inventory offered in each of the following categories: (a) books, (b) magazines, (c) video tapes or
any material in digital format (including, but not limited to compact disc (CD
or digital video disc (DVD), for sale or rental, (d) non-clothing novelties and
devices, and (e) on-premises viewing of images, films and/or videos.
(4) Annual gross
revenue derived from merchandise in any category set forth in Paragraph (3)
above is thirty percent (30%) or more of the total gross revenue for the
category.
There is a rebuttable presumption that a business constitutes a sexually-oriented business where the business (1) offers or advertises merchandise that is distinguished or characterized by an emphasis upon Specified Sexual Activities or Specified Anatomical Areas and (2) fails to make revenue and inventory related business records available to the City upon reasonable advance notice.
Section 9.44.040. Amortization of nonconforming uses.
Any use of real property
existing on September 27, 2005, which does not conform to the provisions of
this Ordinance No. ___ (CCS), but which was constructed, operated and
maintained in compliance with all previous regulations governing
sexually-oriented uses, shall be regarded as a legal nonconforming use which
may be continued until November 10, 2006, except that such activities may
continue for up to an additional two years upon a determination that the adult use is
obligated by written lease of the premises exceeding November 10, 2006 or that the adult use involves investment of
money in leasehold or improvements such that the longer period is necessary to
prevent undue financial hardship. For purposes of this section, in the case of
two adult uses located within 1,000 feet of one another, that use which was
first lawfully established and is otherwise in conformity with this Chapter,
shall be entitled to continue in its present location.
Section 9.44.050. Processing and Approval of License
Applications.
The City shall act upon any application for a business license
to operate a sexually-oriented business within thirty (30) days. The failure to act on the application within
thirty (30) days shall be deemed an approval unless the applicant voluntarily
agrees to extend the time for the City to act upon the application. The City shall approve the permit unless it
is determined that:
(1) The applicant,
its employee, agent, partner, director, officer, stockholder or manager has knowingly
made any false, misleading or fraudulent statement of material fact in the
application or in any report or record required to be filed with the Finance
Department.
(2) The
application does not contain the information required by this Chapter or
Chapter 6.04 of this Code.
(3) The required
application fees have not been paid.
(4) The operation
of the sexually-oriented business is or would be in violations of one or more
provisions of this Chapter.
(5) The premises
where the sexually-oriented business is or would be located do not comply with
all applicable laws, including, but not limited to the City’s building, health,
zoning and fire ordinances.
(6) A permit to
operate the sexually-oriented business has been issued to the applicant, a
partner of the applicant or a stockholder of the applicant which stockholder owns
more than 10 percent of the applicant’s corporate stock, which permit has been
suspended and the period of suspension has not yet ended.
Notice of permit denial shall be in writing and shall state the grounds for denial. Notice shall be personally served to the permit applicant or mailed to the address listed on the application form.
Section 9.44.060. Permit Validity and Conditions.
The
City may condition issuance of a business license to ensure compliance with the
provisions of this Chapter and other standards and regulations of the City’s
Municipal Code applicable to the operation of a sexually-oriented business. Each business license shall be valid only:
(a) For the permittee specified in the permit
application.
(b) For the business name for the
sexually-oriented business listed in the permit application.
(c) For the specific type of sexually-oriented
business described in the permit application.
(d) For the specific location described in the
permit location.
Section 9.44.070.
(a) No permit issued in compliance with this
Chapter shall be assigned or transferred without the prior written approval of
the City. The applicant shall apply for
a transfer on a form provided by the City and shall pay the application
processing fee established by Council resolution for a new sexually-oriented
business.
(b) An application for approval of a transfer of
a permit shall be required prior to any change in an interest in a partnership
or ownership of 10 percent or more of the stock of a corporation to any person
not listed on the original approved application.
(c) An application for transfer of a permit may
be denied for any of the grounds specified for denial of an original permit
application.Section 9.44.080. Displays.
A sexually-oriented business authorized by this Section
shall not display any signs, advertising, posters, photographs, graphic
representations or adult-oriented merchandise that can be viewed by persons off
the site and which depict specified sexual activities or specified anatomical
areas.
Section 9.44.090. Judicial Review.
Anyone seeking judicial review of any administrative
action under this Chapter may seek a writ of mandate for prompt judicial review
of such administrative action pursuant to
APPROVED
AS TO FORM:
_________________________
MARSHA
JONES MOUTRIE
City
Attorney