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HomeMy WebLinkAboutNS-2372 - Extending the Prohibtion on the Establishment of Any New, or Expansion of Any Existing, Adult Entertainment Business, and Providing an Exception Process for Certain Businesses364 Ordinance No. ~q5 2372 AN EMERGENCY ORDINANCE OF THE CITY OF SANTA ANA EXTENDING THE PROHIBITION ON THE ESTABLISHMENT OF ANY NEW, OR EXPANSION OF ANY EXISTING, ADULT ENTERTAINMENT BUSINESS, AND PROVIDING AN EXCEPTION PROCESS FOR CERTAIN BUSINESSES The City Council of the City of Santa Ana finds, determines and declares as follows: 1. Numerous provisions of the Santa Ana Municipal Code ("Code") that regulate adult uses including, but not limited to, portions of Chapter 41 of the Code need review, study and possible revision in order to respond to recent developments within the regulation of adult uses and case law interpretation. Because of their age, such provisions fail to fully take into account the secondary effects that are associated with adult entertainment businesses and fail to address the needs of the City and its residents today and in the future. For this reason, on September 21, 1998 the City Council adopted Ordinance No. NS-2367 as an emergency ordinance ("the emergency ordinance"), which by its own terms expires 45 days ~om the date of its adoption unless otherwise extended. 2. The City Council has held a public hearing, considered all of the written and oral testimony offered concerning whether to extend the emergency ordinance, including the two volumes containing studies undertaken by other public entities and published court opinions. 3. Without extension of the emergency ordinance, properties in the City could quickly receive entitlements to establish adult entertainment businesses, despite the fact that the City Council has determined that the Code is in need of updating and has directed that a study be done to recommend new standards and revised Code sections to address adult entertainment businesses 4. The City Council has directed that all studies be pursued as expeditiously as is practicable, has held a study session on adult uses and has directed staff to expeditiously pursue appropriate revisions to the Code. Since the adoption of the emergency ordinance, the Planning Commission has held two public hearings - the first on September 28, 1998 and the second on October 12, 1998 - on possible revisions to the Code. 365 5. In order to prevent the frustration of said studies and the implementation thereof, the public interest, health, safety and welfare require the immediate enactment of an ordinance extending the emergency ordinance. The absence of such an ordinance would create a serious threat to the orderly and effective implementation of any Code amendments, general plan amendments or specific plan amendments which may be adopted by the City as a result of the studies, in that further development of adult uses within the City may be in conflict with or frustrate the contemplated updates and revisions to the Code, general plan or specific plans and may result in the secondary effects from adult uses in conflict with the contemplated updates and revisions to the Code, general plan and/or specific plans. 6. Experience in this City, as well as in other portions of southern California including the County of Los Angeles, the City of Garden Grove and other cities in other states including the cities of Renton, Washington; Seattle, Washington; Detroit, Michigan; Austin, Texas; Indianapolis, Indiana; and Phoenix, Arizona have demonstrated that such uses have objectionable secondary effects upon immediately adjacent residential and com- mercial areas. The City recognizes and relies upon the experience of these other cities and counties in adopting adult business regulations including the County of Los Angeles; City of Renton, Washington (as discussed in City ofRenton v. Playtime Theatres, Inc. (1976) 475 U.S. 41); the City of Seattle, Washington (as discussed in Northend Cinema v. City of Seattle (1978) 90 Wash.2d 709, 585 P.2d 1153); and the County of Palm Beach, Florida (as discussed in Movie & Video Worm v. Board of County Commissioners (S.D. Fla. 1989) 723 F.Supp. 695) in support of this Ordinance. The City also recognizes and relies upon the studies done by: (1) the City of Los Angeles in 1977; (2) the 1991 report to the City of Garden Grove by Drs. McCleary and Meeker on the relationship between crime and adult business operations; (3) the 1979 Adult Use Study by the Phoenix Planning Department; (4) the 1984 "Analysis of Adult Entertainment Businesses in Indianapolis" by the Department of Metropolitan Development; (5) Austin, Texas' 1986 study on effects of adult businesses; (6) Oklahoma City, Oklahoma (1986); (7) Houston, Texas (1983); (8) Beaumont, Texas (1982); (9) Minneapolis, Minnesota (1980); (10) Amarillo, Texas (1977); and (11) Cleveland, Ohio (1977). 7. The City Council finds that this ordinance, extending the emergency ordinance, is immediately required to preserve the City, including the City's commercial and residential areas from the possible secondary effects of adult uses during such period of time to complete the studies and proposed revised Code in order to protect the City and its residents from the above-recognized potential secondary effects. 8. The City Council finds, determines and declares that the current and immediate threat to the public health, safety and welfare of the City and its citizens necessitates the 366 immediate enactment of this ordinance. The facts constituting such an urgency are set forth in paragraphs 1-7, inclusive of this ordinance. 9. The City Council further finds that this is a matter of City-wide importance and is not directed towards nor targeted at any particular parcel of property or proposed use. NOW THEREFORE, THE CITY COLrNCIL OF THE CITY OF SANTA ANA DOES HEREBY ORDAIN AS FOLLOWS: Section 1: Prohibition. No new adult entertainment use may be established within the City, nor may any existing adult entertainment use within the City be expanded, so long as this ordinance is in effect. In addition, no new massage establishment or figure modeling studio may be established within the City, nor many existing such use be expanded, so long as this ordinance is in effect. Section 2: Exception Process. The City Council f'mds that certain proposed or existing adult entertainment business affected by Section 1 of this Ordinance may be established pursuant to locational and permitting standards and not be in conflict with contemplated zoning proposals which are currently under study. A. Request for Exception. Any person who desires to establish within the City an adult entertainment business exception uses or expand an existing adult entertainment business may request an exception from the City. Any use which is granted an exception may be established in the City irrespective of the provisions referenced in Section 1, above, of this ordinance. The grant of a request for exception by the City shall not release the applicant from complying with any applicable federal, state or local law or regulation. B. Application for Request for Exception. The Planning & Building Agency shall prepare necessary forms for person(s) who wish to request an exception to the provisions of this ordinance. The fee for such application shall be the same fee as for a minor exception, which fee the Council finds does not exceed the reasonable estimated processing costs of the City. C. Grant or Denial of Exception. 3 367 The Planning Manager or designee ("Manager") shall grant, conditionally grant or deny a request for exception to the provisions of this ordinance. Any conditions imposed upon the exception application shall be in keeping with the objective development standards of the underlying zone in which the property is located and the City's parking standards. The Manager shall approve an application for exception where the information submitted by the applicant substantiates all of the following findings: 1. The adult entertainment business is located in one of the following zoning districts: C2, C3, C4, M! or M2. The adult entertainment business meets the following distance criteria, which shall be measured as of the date of the completed application. a. If a new business, that the proposed adult entertainmentbusiness is more than 1,000 feet from any other existing adult entertainment business. b. The proposed adult entertainment business is more than 1,000 feet from any existing public premises as defined in the California Business and Professions Code selling liquor or beer for consumption on the premises as its primary business. c. The proposed adult entertainment business is more than 1,000 feet from any existing public dance halls as defined in section 11-1 of the Code. d..The proposed adult entertainment business is more than 1,000 feet from any existing massage establishment as defined in section 22-1 of the Code. e. The proposed adult entertainment business is more than 1,000 feet from any existing peep show establishment as defined in section 12-22 of the Code. f. The proposed adult entertainment business is more than 1,000 feet from any existing figure model studios as defined in section 12-120 of the Code. g. The proposed adult entertainment business is more than 1,000 feet from any existing residential zone, park, religious institution or school. 4 368 h. The proposed adult entertainment business is more than 125 feet from the right-of-way line of any freeway or street designed as a major arterial in the current circulation element of the general plan. i. The distances set forth above shall be measured as a radius fi'om the property line of the parcel on which the proposed adult entertainment business would be located to the property lines of the property so zoned or used without regard to intervening structures. j. Any waiver of the provisions of this subsection shall be pursuant to the provisions of Division 1, Article V of the Code. 3. The proposed use does not involve an applicant, if an individual, or any of the officers or general partners of an applicant, if a corporation or partnership, that have been found guilty or pleaded nolo contendere within the past four (4) years to a misdemeanor or a felony classified by the State as a sex or sex-related offense. 4. The applicant has submitted false or misleading information on the application. 5. The applicant has had an application for an adult entertainment business permit denied or revoked in the twelve (12) months preceding the date of the current application. 6. The Manager shall deny the request for exception where the information submitted by the applicant fails to substantiate the above-described findings. The Manager shall render a written decision on the request for exception within thirty (30) calendar days of receiving a completed exception application. The Manager shall determine whether an application is complete within fifteen (15) calendar days of its submittal to the Planning & Building Agency. D. Appeal of Planning Manager. Any interested person may appeal the decision of the Manager to the City Council in writing within twenty (20) calendar days after the written decision of the Manager. Notice of the Manager's decision shall be mailed to all property owners within three hundred (300) feet of the proposed use. Consideration of an appeal of the Manager's decision shall be at a public hearing which shall be advertised as provided in Section 41-636 of the Code and shall occur within thirty (30) days of the filing or initiation of the 5 369 appeal. The City Council shall render a decision on the appeal within thirty (30) days of the hearing, which decision shall be in writing. E. Prompt Judicial Review. Any aggrieved person shall have the right to prompt judicial review of the City Council's decision on whether to issue an exception. In making its decision, the City Council shall give the applicant, and any other person who has requested a copy of the decision, direct notice that the time to challenge the decision is governed by California Code of Civil Procedure section 1094.6. All challenges to the Council's decision shall be governed by the provisions of California Code of Civil Procedure section 1094.5, except that the City shall prepare and certify the administrative record of proceedings, should it be requested by petitioner, within twenty (20) days of the request, and the City Attorney is directed to lodge the administrative record directly with the Court without first obtaining payment from the petitioner. F. Definitions. In addition to the definitions contained in the Code, the following words and phrases shall, for the purposes of this ordinance, be defined as follows, unless it is clearly apparent fi.om the context that another meaning is intended. Should any of the definitions be in conflict with the current provisions of the Code, these def'mitions shall prevail: 1. "Adult entertainment business" shall mean any one of the following: a. Adult arcade. The term "adult arcade" as used in this ordinance is 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 or description of specified sexual activities or specified anatomical areas. b. Adult bookstore. The term "adult bookstore" as used in this ordinance is an establishment that has thirty (30) percent or more of its stock in books, magazines, periodicals or other printed matter, or of photographs, films, 6 37O motion pictures, video cassettes, slides, tapes, records or other form of visual or audio representations which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities and or specified anatomical areas. c. Adult cabaret. The term "adult cabaret" as used in this ordinance means 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; and/or (2) which regularly features persons who appear semi-nude; and/or (3) shows films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty (30) percent or more o£the number of which are distinguished or characterizedby an emphasis upon the depiction or description of specified sexual activities or specified anatomical d. Adult hotel/motel. The term "adult hotel/motel" as used in this ordinance means a hotel or motel or similar business establishment offering public accommodations for any form of consideration which, (1) provides patrons with closed-circuittelevision 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 or description 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. e. Adult motion picture theater. The term "adult motion picture theater" as used in this ordinance is 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 or description of specified sexual activities or specified anatomical areas. f. Adult theater. The term "adult theater" as used in this ordinance means a legitimate theater, concert hall, auditorium, or similar establishment which, for any form ofconsiderationregularly features live performances which are distinguished or characterized by an emphasis on the display of specified anatomical areas or specified sexual activities. 7 371 g. Peep Show Establishment. The term "peep show establishment"as used in this ordinance has the same meaning as in section 12-22 of the Code. h. Figure Modeling Studio. The term "figure model studios" as used in this ordinance has the same meaning as in section 12-120 of the Code 2. "Religious Institution" shall mean a facility used primarily for religious assembly or worship and related religious activities. 3. "Park" shall mean any property within the City which is designated "Park" on the General Plan Land Use Map. 4. "Residential Zone" shall mean any property within the City designated to be within the RE, R1, R2, R3, R4 or CR zoning districts, or properties within any neighboring jurisdiction which are designated by that jurisdiction's general plan land use element as being residential. 5. "School" shall mean any child or day care facility, 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 definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college, or university. 6. "Specified anatomical areas" shall mean and include any of the following: a. Less than completely and opaquely covered human (i) genitals or pubic region; (ii) buttocks; and (iii) female breast below a point immediately above the top of the areola; b. Human male genitals in a discernibly turgid state, even if completely and opaquely covered; c. Any device, costume or covering that simulates any of the body parts included in subdivisions (a) or (b) above. 372 7. "Specified sexual activities" shall mean and include any of the following, whether performed directly or indirectly through clothing or other covering: a. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breast; b. Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy; c. Masturbation, actual or simulated, or d. Excretory functions as part of or in connection with any of the other activities described in subdivision (a) through (c) of this subsection.. Section 3: Severability. If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed and adopted this ordinance, and each and all provisions hereof, irrespective of the fact that one or more provisions may be declared invalid. Section 4: Expiration. This ordinance shall be of no further force and effect 10 months and 15 days from the date of its adoption, unless extended by further action of the City Council. Section 5: Publication. The City Clerk shall certify to the extension of this ordinance and cause the same to be published in the manner prescribed by law. Section 6: Emergency Measure. This ordinance is introduced, passed and adopted at one and the same meeting and was thereafter immediately effective. The City Council finds that this ordinance is necessary to protect the public safety, health and welfare. The reasons for the emergency are set forth at paragraphs 1 through 9, inclusive of this ordinance. 9 373 ADOPTED this ] 9 day of October, 1998. ATYEST: Jani~C. Guy Clerk of the Council Mayor COUNCILMEMBERS: Pulido ~yo_ Richardson Aye Espinoza Ahsen% Lutz Aye McGuigan Aye Franklin Aye Moreno Not Voting APPROVED AS TO FORM: Chl6f Assistant City Attorney / CERTIFICATE OF ORIGINALITY & PUBLICATION I, JANICE C. GUY, Clerk of the Council, do hereby certify the attached Ordinance No. ,b'3-2~ 79- to be the original ordinance adopted by the City Council of the City of Santa Ana on /~ -I/- ~? ; and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Cler~the Council City of Santa Ana 10