City Council Meeting 9-27-05 Santa Monica, California

TO: Mayor and City Council

FROM: City Staff

SUBJECT: Ordinance Amending Chapter 9.44 of the Santa Monica Municipal Code Relating to Sexually-Oriented Businesses

Introduction

The attached proposed ordinance would amend and update the Municipal Code provisions which regulate adult, or sexually-oriented, businesses. The present ordinance was adopted in 1981, and an update is necessary to clarify the ordinance’s scope and address changes in the law. The proposed ordinance is presented to the City Council for first reading.

Background

In the last year, a number of questions have arisen about the efficacy of Municipal Code Chapter 9.44 which regulates the location of various types of adult businesses. Because such businesses may engage in expressive activities protected by the First Amendment, municipal regulatory powers are or may be subject to First Amendment constraints. Therefore, any exercise of local authority should be based upon a full record. Accordingly, staff has obtained and reviewed studies undertaken in other cities which show that sexually-oriented businesses impact surrounding neighborhoods. Impacts demonstrated by the studies include increased crime and diminished property values. The studies also show that these adverse impacts increase if sexually-oriented businesses become concentrated in small areas. Copies of the studies will be made available at the Council hearing on the proposed ordinance. In addition to reviewing the studies, staff has also reviewed the extensive case law applicable to the local regulation of adult businesses. That case law will also be before Council at the hearing.

For many years, Santa Monica has regulated the location of “adult entertainment uses,” a term which covers a variety of sexually-oriented businesses. Existing Santa Monica Municipal Code Chapter 9.44 defines the term “adult entertainment uses” to include, among other things, adult bookstores, motion picture theaters, adult motels, sexual paraphernalia stores and massage parlors. Chapter 9.44 limits such businesses to the C3 and C4 Districts. Within those zones, such uses are prohibited within 500 feet of any church, school, library, playground or area zoned for residential use. There is also a prohibition against adult entertainment uses being located within 1000 feet of one another.

Aside from illicit “massage” parlors, few adult businesses are located within Santa Monica. Staff is aware of three businesses which sell both sexual paraphernalia and adult videos and may fall within the current definition of “adult entertainment use.” One of these businesses has been located in a small retail space on Wilshire Boulevard for many years and another is located in a small space on Main Street. In both stores, most of the floor space is devoted to lingerie and other clothing, and the adult video sections are segregated from other merchandise. Staff is unaware of any complaints relating to these businesses, despite the fact that both are located in zones where adult businesses are not a permitted use. A third, larger business opened on Lincoln Boulevard this year, and City staff received many complaints about the business opening there. It is located in a zone designated for adult businesses but within relatively close proximity to residences.

In response to residents’ complaints about the business on Lincoln Boulevard, staff reviewed Chapter 9.44 to determine whether that business and the two others constitute “adult entertainment uses” and are therefore subject to the restrictions imposed by the current ordinance. Staff concluded that the determination was difficult, if not impossible, to make because definitions in the current law are ambiguous. For instance, whether or not a bookstore qualifies as an “Adult Bookstore” depends upon whether a “significant portion” of the books or films offered for sale depict specified sexual conduct. Likewise, whether a store qualifies as a “Sexual Paraphernalia Store” depends upon whether the store “specializes” in merchandise used in connection with specified conduct. The terms “significant” and “specialize” are not defined. Because these ambiguities rendered the ordinance difficult to administer, staff concluded that revisions should be proposed.

Moreover, there are additional legal reasons to amend and update the ordinance. Developments in case law may require revision of the location restrictions and the addition of procedural safeguards to protect the constitutional rights of those business owners whose activities are shielded by the First Amendment. A memorandum summarizing legal issues is attached.

Discussion

The proposed ordinance is modeled after ordinances which have withstood federal constitutional challenges in other jurisdictions.

The ordinance would substantially revise certain definitions for clarity’s sake. It would clarify when an establishment constitutes a sexually-oriented business. For instance, an adult retail use establishment (previously denominated as a “sexual paraphernalia store”) would be an establishment that has thirty percent (30%) or more of its stock in adult-oriented merchandise. Adult-oriented merchandise and stock is also specifically defined. The proposed ordinance would also more precisely define when an establishment constitutes an adult arcade, adult cabaret, adult hotel/motel, adult motion picture theater, and adult theater by establishing precise numerical or percentage thresholds for when an establishment which features/distributes/sells adult materials or performances constitutes a sexually-oriented business.

Other definitions would be eliminated by the proposed ordinance. The definition of “Adult Model Studio” would be eliminated as unnecessary to fulfill the ordinance’s purposes because the only such studios in or near the City operate in conjunction with legitimate art classes. Likewise, the term “Sexual Encounter Center” would be deleted as unnecessary because no such centers operate in the City and, even if they did, other laws would likely apply.

The proposed ordinance would continue to allow sexually-oriented businesses in the C3 and C4 Zoning Districts. The ordinance would also clarify that these businesses can be located in the C3C and BSC Districts. These districts were established after the current ordinance was adopted and, with minor exception, had been part of the C3 District. Additionally, the proposed ordinance would allow such businesses in the LMSD, M1 and C5 Zones. This change is proposed in order to ensure that the City continues to fulfill requirements imposed by case law. Generally speaking, the courts have prohibited cities from zoning out adult businesses in order to protect the First Amendment rights of business operators. Thus, location restrictions on such businesses must leave adequate sites available to meet demand. The location restrictions in the proposed ordinance would leave 1-1.5% of land within the City available to adult businesses.

Current spacing requirements would be maintained. Therefore, it would continue to be illegal to locate a sexually-oriented business within 500 feet of a “residential district.” All existing residential districts would be encompassed by this provision. The ordinance clarifies that the required separation from religious institutions, schools (except institutions of higher education), playgrounds and other facilities is measured in a straight line from the closest points on the property lines of each site.

The amortization provision of Chapter 9.44 would also be revised to establish a one-year amortization period for legal non-confirming sexually-oriented businesses subject to a two year extension if the sexually-oriented business is obligated by an existing lease. Whether existing businesses would be subject to the proposed ordinance and the amortization provisions would depend upon whether they fall within the ordinance’s definitions.

Several new provisions would also be added. One would prohibit signs depicting specified sexual activities or anatomical areas from being visible off the site. This provision would limit adverse impacts on neighborhoods. Other new provisions would establish a processing time limit of 30 days on business license applications, the right to prompt judicial review, authorize the City to impose conditions on the business license, and restrict the sale or transfer of the business. These provisions fulfill requirements imposed by case law.

Two unnecessary sections of the current ordinance would be eliminated. One purports to establish an exception for schools, which is unnecessary with the elimination of “Adult Model Studios” from the list of regulated businesses. The other regulates massage businesses, which are separately regulated by a different Chapter of the Municipal Code. Staff is currently working on amendments to that Chapter.

Financial/Budget Impact

Adoption of the proposed ordinance would have no financial impact.

Recommendation

Assuming that the Council wishes to continue regulating the location of sexually-oriented businesses, it is respectfully recommended that the accompanying ordinance be introduced for first reading.

PREPARED BY: Marsha Jones Moutrie, City Attorney

Barry Rosenbaum, Senior Land Use Attorney

ATTACHMENTS: Memorandum

Proposed Ordinance