HomeMy WebLinkAboutNS-2373 - Amending and Adding Various Provisions of the Santa Ana Municipal Code Regulating374
ORDINANCE NO. Ns-2 3 7 3
AN ORDINANCE OF THE CITY OF
SANTA ANA AMENDING AND ADDING
VARIOUS PROVISIONS OF THE SANTA
ANA MUNICIPAL CODE REGULATING
LAND USES AND CREATING A NEW
ARTICLE FOR REGULATION OF ADULT
ENTERTAINMENT BUSINESSES
The City Council of the City of Santa gna ordains as follows:
SECTION1. FINDINGS
The City Council of the City of Santa gna ("the City") f'mds, determines
and declares:
A. This Ordinance is necessary in order to revise and update certain
provisions of the City's Municipal Code relating to adult entertainment businesses in
order to respond to recent developments in the regulation of expressive and adult
entertainment businesses and case law interpretation. The City Council finds and
determines that this Ordinance is necessary to establish reasonable and uniform
regulations that will reduce the adverse secondary effects that adult entertainment
businesses have upon the residents of the City and that it is evident that special zoning
regulations applicable tO adult entertainment businesses are necessary to preserve the
integrity of existing commercial areas of the City and of residential areas which are in
close proximity to such commercial areas. The public health, safety and welfare of
the City requires the enactment of this Ordinance.
B. The City Council further finds and determines that this Ordinance
is necessary in order to preserve the City from the potential secondary effects of adult
entertainment businesses including crime, the protection of the City's retail trade, the
prevention of the blighting of neighborhoods and the maintenance of property values,
protecting and preserving the quality of the City's neighborhoods and the City's
commercial districts, the protection of the City's quality of life, the increased threat of
the spread of sexually transmitted diseases, and the protection of the peace, welfare
and privacy of persons who patronize adult businesses. Experience in this City, as
well as in other portions of southern California including the County of Los Angeles,
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the City of Garden Grove and 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 commercial 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 of Renton 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).
C. Prior to the adoption of this Ordinance, the City Council reviewed
the detailed studies prepared by other jurisdictions regarding the social and economic
effects on persons and properties surrounding established adult entertainment business
facilities. Copies of these studies are available for public review upon request. The
City Council f'mds that these studies are relevant to the problems addressed by the
City in enacting this Ordinance to regulate the adverse secondary side effects of adu!
facilities, and more specifically finds that these studies provide convincing evidence of
the significant secondary effects of adult businesses within a community. The City
Council finds the following statements are true, in part based on its understanding of
the experiences of the various identified jurisdictions:
1. Crime rates are higher in residential areas surrounding
adult business uses than in commercial or industrial areas surrounding adult business
uses;
2. Crime rates in areas where adult business uses are closely
situated to each other are higher than areas in which adult business uses are separated
from each other;
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3. Areas within close walking distance of single and
muldfamily dwellings should be free of adult business uses;
4. Adult business uses should be located in specific areas of
the City which have physical barriers from sensitive uses such as residences, parks,
religious institutions and schools and which are separated from major highways.
5. The image of the City of Santa Aha as a pleasant and
attractive place to reside will be adversely affected by the presence of adult business
uses in close proximity to residential zones, religious institutions, day care centers,
schools, and parks;
6. The existence of adult business uses in close proximity to
residential areas has been shown in some cities to reduce the property values in those
residential areas;
7. A reasonable regulation of the location of adult business
uses protects the image of the community and its property values and protects its
residents from the adverse secondary effects of adult business uses, while providing
those who desire to patronize adult business uses an opportunity to do so in
appropriate areas in the City;
8. There is substantial evidence that an increase in crime tends
to accompany, concentrat~ around, and be aggravated by adult business uses,
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 from
other cities establish convincing evidence that adult businesses which are not regulated'
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; and
9. Regulations for adult business uses should be developed to
prevent deterioration and/or degradation of the vitality of the community before the
problem exists, rather that waiting for problems to be created.
D. With respect to adult business uses, the City Council also
determines that locational criteria do not, in and of themselves, adequately protect the
health, safety and general welfare of the citizens of Santa Ana, and thus certain
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requirements with respect to ownership and operation of adult business uses 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, the City Council takes legislative notice of
the facts recited in Kev, Inc. v. Kitsap County (9th Cir. 1986) 793 F.2d 1053,
regarding how live adult entertainment results in secondary effects such as
prostitution, drug dealing and other law enforcement problems.
E. The City Council has determined that the establishment of a
minesterial permit process is a legitimate and reasonable means of ensuring that:
1. Operators of adult business uses comply with the reasonable
regulations of this Article;
2. The recognized secondary impacts of a proposed adult
entertainment business in a specific location are mitigated; and
3. All adult entertainment business operators have specific
guidelines with respect to the manner in which they can operate an adult entertainment
business.
F. Zoning, permitting, and other police power regulations, such as
those employed in this Ordinance, are legitimate, reasonable means of accountability
to help protect the quality of life in the City of Santa Aha and to help ensure that all
operators of adult entertainment businesses comply with reasonable, content neutral,
regulations.
G. The City Council recognizes the possible harmful effects on
children and minors exposed to the effects of adult business uses and the deterioration
of the respect for family values, and the need and desire for children and minors to be
entitled to avoid such businesses, which cause children to be fearful and cautious in
walking through or visiting the immediate neighborhood of such uses; and the City
Council desires to minimize and control the adverse secondary effects associated with
the operation of adult business uses and thereby protect the health, safety and welfare
of the citizens of Santa Aha; protect the citizens 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 increased risk of the spread of communicable and sexually
transmitted diseases.
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H. The City Council f'mds the following, in part based upon its
understanding of the documents and judicial decisions in the public record:
1. Evidence indicates that some dancers, models and
entertainers, and other persons who publicly perform specified sexual activities or
publicly display specified anatomical parts in adult business uses (collectively referred
to as "performers") have been found to engage in sexual activities with patrons of
adult business uses on the site of the adult business use;
2. Evidence has demonstrated that performers employed by
adult business uses have been found to offer and provide private shows to patrons
who, for a price, are permitted to observe and participate with the performers in live
sex shows;
3. Evidence indicates that performers at adult business uses
have been found to engage in acts of prostitution with patrons of the establishment;
4. 'Evidence indicates that small rooms whose interiors cannot
be seen from public areas of the establishment regularly have been found to be used as
a location for engaging in unlawful sexual activity; and
5. As a result of the above, and the increase in incidents of
AIDS and Hepatitis B, which are both sexually transmitted diseases, the City has a
substantial interest in adopting regulations which will reduce, to the greatest extent
possible, the possibility for the occurrence of prostitution and casual sex acts at adult
businesses.
I. It is not the intent of the City Council in enacting this Ordinance, or any
provision hereof, to condone or legitimize the distribution of obscene material or
material harmful to minors, and the City of Santa /ina recognizes that state law
prohibits the distribution of obscene materials and regulates the distribution of harmful'
materials. Moreover, nothing in this Ordinance is intended to authorize, legalize or
permit the establishment, operation or maintenance of any business, building or use in
the City of Santa Ana that violates any City ordinance or statute of the State of
California regarding the establishment of a public nuisance, unlawful or indecent
exposure, sexual conduct, lewdness, or obscene or harmful matter.
J. It is not the intent of the City Council in adopting this Ordinance to
suppress any activities protected by the First Amendment, but rather to enact a
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content neutral Ordinance which addresses the secondary effects that adult business
uses have on the City and provides for reasonable objective permit standards for all
adult entertainment businesses. In developing this Ordinance, the City Council has
been mindful of legal principles relating to regulation of adult businesses and all
adult entertainment businesses and does not intend to suppress or infringe upon any
expressive activities protected by the First Amendments 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
and which do not operate as an unconstitutional prior restraint. The City Council
has considered decisions of the United States Supreme Court regarding local
regUlation of adult businesses, including but not limited to: Young v. American Mini
Theaters, Inc., 427 U.S. 50 (1976) (reh. denied 429 U.S. 873); City ofRenton v.
Playtime Theaters, 475 U.S. 41 (1986) (reh. denied 475 U.S. 1132); FW/PBS, Inc.
v. Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theater, 501 U.S. 560 (1991);
United States Court of Appeals 9th Circuit decisions, including but not limited to:
Topanga Press v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), and Kev, Inc.
v. Kitsap County, et al., 793 F.2d 1053 (9th Cir. 1986); and several California cases
including but not limited to: City of National City v. Wiener, 3 Cal.4th 832 (1993),
cert. denied (1993) 114 S.Ct. 85; People v. Superior Court (Lucero), 49 Cal.3d 14
(1989); and City ofVallejo v. Adult Books, et al., 167 Cal. App.3d 1169 (1985); and
other federal and state cases including Lakeland Lounge v. City of Jacksonville, 973
F.2d 1255 (5th Cir. 1992), Hang On, Inc. v. Arlington, 65 F.3d 1248 (5th Cir.
1995), Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir.
1993), International Eateries v. Broward County, 941 F.2d 1157 (llth Cir. 1991),
Star Satellite v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986), Ino, Ino Inc. v. City of
Bellevue, 132 Wash.2d 103, 937 P.2d 154 (1997), 3570 East Foothill Blvd., Inc. v.
City of Pasadena, 980 F.Supp. 329 (C.D.Cal. 1997), Excalibur Group, Inc. v. City of
Minneapolis, 116 F.3d 1216 (8th Cir. 1997), cert. denied 139 S.Ct. 855, 139 L.Ed.2d
755, Michigan ex tel. Wayne County Prosecutor v. Dizzy Duck, 449 Mich. 353, 535
N.W.2d 178 (1995).
K. The City Council desires to protect the rights conferred by the United
States Constitution to adult business uses and other adult entertainment businesses in a
maimer that ensures the continued and orderly development of property within the
City and diminishes those undesirable negative secondary effects the previously
mentioned studies have shown to be associated with the development and operation of
adult business uses.
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L. The City Council recognizes the possible harmful effects on children and
minors exposed to the effects of adult business uses and the need and desire to insure
that children and minors are not exposed to such businesses.
M. 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.
N. The City Council does not intend to regulate in any area preempted by
California law, including but not limited to regulation of obscene speech, nor is it the
intent of the City Council to preempt regulations of the State Alcoholic Beverage
Commission ("ABC").
O. The City Council recognizes that the California Legislature has explicitly
found and declared, in section l(a) of Chapter 726 of the Statutes of 1998 (AB 726),
that: "The presentation of live nude entertainment within adult or sexually oriented
business may be found to create undesirable secondary effects including, but not
limited to, an increase in criminal activities such as prostitution and drug dealing in
:the vicinity of the property on which the entertainment is being provided."
P. The City Council further recognizes that, in adopting Government Code
section 65850.4(b), the Legislature has explicitly found and declared that city
councils "may consider any harmful secondary effects [an adult or sexually oriented]
business may have on adjacent cities and counties and its proximity to churches,
schools, residents and other businesses located in adjacent cities or counties."
Q. This ordinance would be consistent with the General Plan in that
it would establish locational criteria and development and operating standards needed
ensure that the uses regulated by this Ordinance are compatible with surrounding land
uses.
R. It is the City Council's intent that any person aggrieved by a permit,
licensing or decision on a grant of authority made pursuant to this Ordinance shall be
afforded prompt judicial review of that decision as provided for by the procedures of
this Ordinance and existing California law.
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SECTION 2.
The City Council has reviewed and considered the information contained
in the initial study and the negative declaration prepared with respect to this
Ordinance. The City Council has, as a result of its consideration, and the evidence
presented at the hearings on this matter, determined that, as required pursuant to the
California Environmental Quality Act ("CEQA") and the State CEQA Guidelines, a
Negative Declaration adequately addresses the expected environmental impacts of this
Ordinance. On the basis of this review, the City Council finds that there is no
evidence from which it can be fairly argued that the project will have a significant
adverse effect on the environment. The City Council hereby certifies and approves
the negative declaration and directs that the Notice of Determination be prepared and
filed with the County Clerk of the County of Orange in the manner required by law.
Pursuant to Title XIV, California Code of Regulations ("CCR")
§ 735.5(c)(1), the City Council has determined that, after considering the record as a
whole, there is no evidence that the proposed project will have the potential for any
adverse effect on wildlife resources or the habitat upon which the wildlife depends.
Therefore, pursuant to Fish and Game Code § 711.2 and Title XIV, CCR
§ 735.5(a)(3), the payment of Fish and Game Department filing fees is not required in
conjunction with this project.
SECTION 3.
Sections 41-12.1, 41-12.2, 41-12.3, 41.12.4, 41-152.1, and 41-152.2 of the
City's Code are repealed in order to be readopted without substantive change.
Subsections (b)(1) through (b)(3), Co)(5) and (b)(8) through (b)(9) of section 41-191 of
the City's Code are repealed in order to be readopted without substantive change; the
remaining subsections of 41-191(b) shall be renumbered consecutively. Section 41-
191Co)(4) is added to read: "Adult entertainment businesses as defined in section 41-
1601.6."
SECTION 4.
Section 41-377 (Uses Permitted in the C2 distric0 of the City's Code is
mended to add a sub-sub-section (k) to read as follows:
(k) Adult entertainment businesses, subject to compliance with the
requirements of Article XVI of this Chapter.
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This section shall otherwise remain unchanged.
SECTION 5.
Section 41-412 (Uses .Permitted in the C4 district) of the City's Code is
amended to add a second sentence to read as follows:
In addition, Adult entertainment businesses shall be permitted in the C4
district, subject to compliance with the requirements of Article XVI of
this Chapter.
This section shall otherwise remain unchanged.
SECTION 6.
Section 41442 (Uses Permitted in the CR distric0 of the City's Code is
amended to add a sub-sub-section(e) to read as follows:
(e) Adult entertainment businesses, subject to compliance with the
requirements of Article XVI of this Chapter.
This section shall otherwise remain unchanged.
SECTION Z
Section 41-472 (Uses Permitted in the Mi' distric0 of the City's Code is
amended to add a sub-sub-section(z) to read as follows:
(z) AduR entertainment businesses, subject to compliance with the
requirements of Article XVI of this Chapter.
This section shall otherwise remain unchanged.
SECTION 8.
Article XVI, entitled Adult entertainment businesses, is hereby added to
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Chapter 41 of the City's Municipal Code as follows:
Sections:
41-1600
41-1601
41-1602
41-1603
41-1604
41-1605
41-1606
41-1607
41-1608
41-1609
41-1610
41-1611
41-1612
41-1613
Article XVI
Adult entertainment businesses
Specific Purposes.
Dermitious.
Adult entertainment business -- Permitted Zones and Locations.
Adult Entertainment Business Land Use Permit -- Requirements.
Permit -- Contents of Application.
Permit -- Decision to Grant or Deny.
Permit -- Approval Criteria.
Permit -- Period of Validity.
Permit- Revocation.
Grant of Authority.
Grant of Authority- Non-Transferable.
Development and Operating Standards.
Applicability to Other Regalatious.
Violations.
Sec. 41-1600. Specific Purposes.
In addition to the general purposes listed in section 41-1, the specific
purposes of this article are to:
A. Establish a procedure which places strict limits on processing time
and eliminates any possibility for the exercise of unfettered discretion in reviewing
applications for establishing adult entertainmentbusinesses.
B. Ensure orderly and thorough city review of applications for
certain adult entertainment businesses including but not limited to adult business uses.
C. Establish reasonable and uniform regulations that will reduce
possible adverse secondary effects that adult entertainment businesses may have upon
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the residents of the city and preserve the integrity of existing commercial areas of the
city and of residential areas which are in close proximity to such commercial areas.
D. To protect the rights conferred by the United States Constitution
to adult.entertainment businesses in a manner that' ensures the continued'and orderly
development of property within the city and d'un~.'shes those undesirable negative
secondary effects that recognized studies have shown to be associated with the
.development and operation of adult entertainment b.u~inesses.
E.. To allow a process whereby the unusual site development features or
operating characteristics of uses which must .c.&hply with this Article may be
cond. itioned..throUgh, an .individual .review, in order' t.o be compatible with' the.
sifi'~o;mding"use.~ of property, while :pfeservLri~. fh6 ai~Plicant's rights to objective
standards and prompt administrative and judicial review.
Sec. 41-1601. Def'mitions.
The words and phrases, whenever used in ibis article, shall be construed as
defined in this.section, unless from the context a.different meaning is intended or
.unless a different meaning is specifically d~f'med and more particularly directed to the
use of such words or phrases. The words used in ~e present tense include the future
'tense, and words in the singula~ number include the plural number.
Sec. 41-1601.1. Day' care.
The term "day care" as used in this article shall mean only those day care
facilities that are licensed by the State of California...
Sec. 41-1601.2. Establishment of an Adult enti~rthinment business.
As used herein, to "establish" an Adult entertainment business shall mean and
include any of the following:
(1) The opening or commencement of any' adult entertainment business as a
new business;
(2) The conversion of an existing busth,ess, whether or not an adult
entertainment business, to any adult entertainment bd,siness defined herein;
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(3) The addition of any of the adUlt entertainment businesses defined herein
to any other existing adult entertainment business; pr
(4) The.relocation of any such adult entertaim~nt business.
Sec. 41.1601.3. Residenfialzone.
As used herein, "residential zone" shall;'mean those areas of thc City~ or
surrounding jurisdictions, which are designated as residential pursuant to the land Use
element of the jurisdiction's general plan. ....
Sec. 41.1~01.4. ' . Specified anatomical areas. "-
As used herein, "specified anatomical areas'; shall mean and include any of the
following:
(I) Less than completely and opaquelycovered human (i) genitals or pubic
region; (ii) buttocks; and (iii) female breast below a point immediately above the top
of the areola; .,...
(2) Human male genitals in a discernibly, mrgid state, even if completely and
opaquely covered;
(3) Any device, costume or covering that simulates any of thc body parts
included in.subdivisions (1) or (2) above. .
Sec. 41-1601.5. Specified sexual activities.
As used herein, "specified sexual activities" shah mean and include any of the
following, whether performed directiy or indirectly through clothing or other
covering:
(1) The fondling or other erotic t~uching of human genitals, pubic region;
buttocks, anus, or female breast;
(2)
sodomy;
Sex acts, actual or simulated, including intercourse? oral copulation, or
(3)
Masturbation, actual or simulated;
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(4) Excretory functions as part of or in connection with any of the other
activities described in subdivision (1) through (3) of this subsection.
Sec. 41-1601.6. Adult entertainment businesses.
As used in this article, the term "Adult entertainment businesses" means any
one of the following:
(1) .Adult arcade. The term "adult arcade" as used in this chapter, 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 regularly feature, but in no event more than
twenty percent (20%) 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.
(2) Adult bookstore. The term "adult bookstore', as used in this chapter, is
an establishment that regularly features, but in no event has more than twenty percent
(20%) of its stock in trade in books, magazines, periodicals or other printed matter, or
of photographs, films, 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.
(3) Adult cabaret. The term "adult cabaret" as used in this chapter, means
a cabaret, 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 live performances by persons who appear semi-nude.
(4) Adult hotel/motel. The term "adult hotel/motel" as used in this
chapter, means 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 that regularly
feature, but in no event more than twenty percent (20%) of the number of which, are
distinguished or characterized by an emphasis upon the depiction or description of
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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.
(5) Adult motion picture theater. The term "adult motion picture theater"
as used in this chapter, 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 regularly feature, but in
no event more than twenty percent (20%) 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.
(6) Adult theater. The term "adult theater" as used in this chapter, means
a legitimate theater, concert hall, auditorium, or similar establishment primarily
devoted to theatrical performances 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.
(7) Modeling studio. The term "modeling studio" as used in this chapter,
means a business which meets the definition of a figure modeling studio pursuant to
Article IV of Chapter 12 of this Code or which provides, for pecuniary compensation,
monetary or other consideration, hire or reward, figure models who, for the purposes
of sexual stimulation of patrons, display "specified anatomical areas" to be observed,
sketched, photographed, painted, sculpted or otherwise depicted by persons paying
such consideration. "Modeling studio" does not include schools maintained pursuant
to standards set by the State Board of Education. "Modeling studio" further does not
include a studio or similar facility owned, operated, or maintained by an individual
artist or group of artists, and which does not provide, permit, or make available
"specified sexual activities."
Sec. 41-1601.7. Religious Institution.
The term "religious institution" as used in this article, is a structure
which is used primarily for religious worship and related religious activities.
Sec. 41-1601.8. Distinguished or characterized by an emphasis upon.
As used in this article, the term "distinguished or characterized by an emphasis
upon" shall mean and refer to the dominant or essential theme of the object described
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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. See Pringle v. City of Covina, 115
Cal. App.3d 151 (1981).
Sec. 41-1601.9. Regularly Features.
The term "regularly features" with respect to an adult entertainment business
means a regular and substantial course of conduct. For purposes of an adult theater or
adult cabaret the fact that live perfomrances which are dist'mguished or characterized
by an emphasis upon the display of specified anatomical areas or specified sexual
activities occurs on two (2) or more occasions within a thirty (30) day period; three
(3) or more occasions within a sixty (60) day period; or four (4) or more occasions
within a one hundred and eighty (180) day period, shall to the extent permitted by law
be deemed to be a regular and substantial course of conduct.
Sec. 41-1601.10. School.
The term "school" as used in this article 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
maintaiIaed pursuant to standards set by the State Board of Education. This def'mition
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.
Sec. 41-1601.11. Semi-nude.
The term semi-nude as used is this article shall mean a state of dress in which
clothing covers no more than the genitals, pubic region, buttocks, areola of the female
breast, as well as portions of the body covered by supporting straps or devices.
Sec. 41-1602.
Adult entertainment business - Pec~m'tted Zones and
Locations.
A. No adult entertainment business may be located within the City,
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except in one of the following zoning districts: C2, C3, C4, CR, Mi and M2.
B. No adult entertainment business may be located within the City
unless it meets the following distance criteria:
1. The proposed adult entertainment business is more than
1,000 of any other existing adult entertainment business.
2. 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.
3. The proposed adult entertainment business is more than
1,000 feet from any existing public dance halls as defined in section 11-1.
4. The proposed adult entertainment business is more than
1,000 feet from any existing massage establishment as defmed in section 22-1.
5. The proposed adult entertainment business is more than
1,000 feet from any existing peep show establishment as def'med in section 12-22.
6. The proposed adult entertainment business is more than
1,000 feet from any existing residential zone, park, day care, religious institution or
school.
7. The proposed adult entertainment business is more than 125
feet from the right-of-way line of any freeway or street designated as an arterial in the
current circulation element of the general plan. This distance shall be measured along
a straight line from the right of way line, as shown on the City's official map, to the
parcel line of the proposed adult entertainment business, without regard to intervening
structures.
8. The distances set forth in sub-sections 1-6 above shall be
measured as a radius from the primary entrance of the proposed adult entertainment
business to the property lines of the parcel so zoned or used, without regard to
intervening structures.
10. Any waiver of the provisions of this subsection shall be
pursuant to the provisions of Division 1, Article V of this chapter; provided, however,
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that any such application shall be reviewed and determined as provided in sections 41-
1605 of this Code.
Sec. 41-1603.
Adult Entertainment Business Land Use Permit -
Requirements.
A. Permit Required. No adult entertainment business may be
operated or established within the city by right --all persons wishing to operate or
establish an adult entertainment business within the city must apply for and obtain a
ministerial Adult Entertainment Business Land Use Permit under this Article. The
City's Development Project Plan Approval process, set forth at section 41-68 et seq.
of this Municipal Code, shall not apply to applications solely for the issuance of an
Adult Entertainment Business Land Use Permit under this Article.
B. Application. Any person desiring to operate or establish an adult
entertainment business within the city shall file with the planning and building agency
an Adult Entertainment Business Land Use Permit application on a standard
application form supplied by the planning and building agency.
C. Existing Adult entertainment businesses. The city council
declares that all adult entertainment businesses legally established as of ,
1998 [the effective date of this Ordinance] shall not be deemed to be non-conforming
to Chapter 41, as amended, for failure to seek and obtain an Adult Entertainment
Business Land Use Permit for a period of one year. The city council further declares
that all legally established adult entertainment businesses, as that term is defined in
this Article, shall be deemed to be conforming for the use or uses specified in any
conditional use permit or live entertainment permit issued to the use. For the
purposes of this Article the adult entertainment businesses located at the following
addresses shall be deemed to be legally established: 213 North Harbor Boulevard,
225 North Harbor Boulevard, 1109 North Harbor Boulevard, 2721 West Edinger
Avenue, and 2701 East Edinger Avenue.
Sec. 41-1604. Permit -- C6ntents of Application.
A. Initiation. The permit process shall be initiated by the filing of.a
complete application with the executive director. The executive director shall
determine the completeness of the application within thirty (30) calendar days of its
submittal.
17
B. Contents. The city council, by resolution, shall set forth the
contents required for such applications for an Adult Entertainment Business Land Use
Permit.
Sec. 41-1605.
A.
Permit -- Decision to Grant or Deny.
Action on Application. The planning manager or designee, shall
act as the decision-maker on the application and shall ministerially grant or deny an
application for an Adult Entertainment Business Land Use Permit.
B. Investigation. Upon the filing of a completed application, the
decision-maker shall cause to be made an appropriate investigation, including
consultation with other city agencies and inspection of the premises as needed.
Consultation is not grounds for the city to unilaterally delay in reviewing a completed
application.
Notice and Hearing.
1. An application for an Adult Entertainment Business Land
Use Permit shall be mailed and noticed at least fourteen (14) days prior to the public
hearing as follows:
applicant, if different;
i. By mail, to the property owner and the project
ii. By mail to all owners of property within 300 feet of
the site boundaries, as shown on the latest equalized tax assessment roll; and
site boundaries.
By posting along public streets within 300 feet of the
2. The decision-maker shall conduct the public hearing as
prescribed in section 3-4 of this Code. In reaching a decision on an application, the
decision-maker shall not be bound by the formal rules of evidence.
E. Time for Hearing. After the investigation has been completed the
decision-maker shall conduct a noticed public hearing, as prescribed by this section,
on the application for an Adult Entertainment Business Land Use Permit.
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F. Action on Application. The decision-maker shall render a
decision on the application for an Adult Entertainment Business Land Use Permit
within thirty (30) days of receiving a complete application. The decision shall be
made no later than the same day as the final hearing on the application, and if not in
writing, a written decision shall be prepared within three (3) business days of the
decision. As provided in section 1-19(d) of this Code, the written decision shall state
that the time within which judicial review of the decision must be sought is governed
by California Code of Civil Procedure section 1094.6. The failure of the decision-
maker to render such a decision within this time frame shall be deemed to constitute a
denial.
G. Final Decision. The decision-maker's written decision shall be
hand delivered or mailed to the applicant, and shall be fmal.
H. Court Proceedings. All challenges to the decision-maker's action
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 thirty (30) days of the
request.
Sec. 41-1606. Permit -- Approval Criteria.
A. Findings. The decision-maker shall ministerially approve an
application for an Adult Entertainment Business Land Use Permit subject to its
compliance with this Article, where the information submitted by the applicant
substantiates the following findings:
1. The proposed use complies with the applicable development
and design requirements of the underlying zoning district in which it is to be located
and with the applicable standards of this Article.
2. The proposed use will provide and maintain wastewater to
establish and maintain an unrestricted flow in sanitary sewers during average and peak
conditions as established by the city's approved sewer master plan, as amended from
time to time.
3. The proposed use will provide and maintain solid waste
services to establish and maintain a level of service consistent with the city's approved
source reduction and recycling element.
393
4. ' The proposed use is located in a zoning district in which an
adult entertainment business is permitted pursuant to section 41-1602(a).
5. The adult entertainment business meets the distance
criteria of section 41-1602Co), which shall be measured as of the date of the completed
application.
6. 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.
7. The applicant has not submitted false or misleading'
infOrmation on the application.
8. The applicant has not had an application for an Adult
Entertainment Business Land Use Permit denied or revoked in the twelve (12) months
preceding the date of the current application.
Sec. 41-1607. Permit -- Period of Validity.
Any Adult Entertainment Business Land Use Permit approved pursuant
to this Article shall become null and void unless the proposed use is established within
one (1) year of the date from the approval. The permit holder may apply for a single
one year extension of the permit, provided that such application is filed prior to the
expiration of the permit. Any application for an extension shall be reviewed by the
same procedure as the original permit application. For purposes of this section, a
proposed use shall be deemed to be established if a building permit for the project has
been issued and construction diligently pursued; or, a certificate of occupancy has
been issued; or, a complete application for an extension has been submitted.
Sec. 41-1608. Permit -- Revocation.
A. Findings. Any permit issued pursuant to the provisions of this
Article may be revoked by the city on the basis of any of the following:
1. The business or use has been conducted in a manner which
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violates the provisions of this article, the permit itself, fails to conform to the plans,
specifications or procedures described in the application, or which violates the
occupant load limits set by the Fire Marshall.
2. The pe~ndttee has failed .to obtain or maintain all required
city, county, and state licenses and permits.
3. The pemdt is being used'to conduct an use different from
that for which it was issued.
4. The permittee has misrepresented a material fact in the
application for permit or has not answered each que.stion therein truthfully.
5. Due to changes in :.on-site conditions, t_he adult
entertainment business lacks sufficient on-site pa[Lng area for employees and the
public under the standards set forth in the city's..l~arking ordinance, except for an
existing use that is legal and nonconforming with respect to parking.
6. The permitted business creates sound levels which violate
the noise control ordinance of the city.
7. That the use for which the approval was granted has been
discontinued, ceased to exist or has been suspende~or a continuous period of six (6)
months or more. ~
B. Notice of Hearing. The grantor. .of the permit, shall notice and
conduct a public hearing, as prescribed in the Municipal Code, on the proposed
pemdt revocation.
C. Hearing. The planning manager or designee shall conduct the
revocation hear'rog and hear testimony regarding the proposed revocation from any
interested party. The hearing body shall not be bound by the formal rules of evidence
at the hearing.
D. Notice. Written notice of hearing on the proposed permit
revocation, together with written notification of the specific grounds of complaint
against the permittee shall be personally delivered or sent by certified mail to the
permittee at least ten (10) days prior to the hearing.
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395
E. Decision. The grantor shall reVOke, not revoke, or not revoke but
add conditions to, the permittee's Adult Entertainment Business Land Use Permit.
F. Decision and Notice. Within.ten (10) working days of the
conclusion of the hearing, the decision-maker shall' render a decision, supported by
written findings. A copy of the dbcision and Written findings shall be mailed to the
owner of the use or structure for which the pe"rmit was revoked and to any other
person who has filed a written request for such notice.
G. Time for Decision· The decision-maker shall make its decision
within thirty (30) days of the public hearing.
H. Appeal of Decision or Call for Review. If the decision on
revocation is made by the planning manager or designee, any interested person may
appeal the decision to the planning commission, or the decision may be reviewed by
the city council pursuant to a call for review by th.e council, pursuant to section 41-
645(c).
I. Effective Dhte. The effeetive;date of a decision to revoke an
Adult Entertainment Business Land Use Permit s.hal.~ be as provided in section 41-645.
J. Renewal. In the event a permit is revoked pursuant to this
Article, another Adult Entertainment Business Land Use Permit shall not be granted
to the permittee or on the site of the permit within t.welve (12) months after the date of
such revocation.
Sec. 41-1609. Grant of Authority
A. No person may operate an adult, entertainment business without a
grant of authority. Every applicant who is granted, an Adult Entertainment Business
Land Use Permit shall at the same time automatically be issued by the Chief of Police
a grant of authority to operate the adult entertainmentbusiness.
B. The grant of authority shall be renewed yearly by the operator,
who shall apply for renewal no later than thirty (30) days prior to the expiration of the
grant.
C. Should any holder of a grant of authority desire to transfer or
assign the grant, the proposed new holder shall file a request to transfer the grant of
22
authority no later than' thirty (30) days prior to the date the new business operator
intends to initiate operations.
D. The Chief of Police or designee shall renew or transfer a grant of
authority no later than fifteen (15) calendar days foIlowing the request for renewal or
issuance of a transfer providing only that the business operator if an individual, or any
of the officers or general partners of the business owner, if a corporation or
par/nership, has not 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.
· E. The Chief of~Police,s.hall make available applications i6 ~enew or
:tr~nsfe~ a'~i~rhr~ of'auttio/'ity.'
Sec. 4121610. Grant of Authority- Non-Transferable
A. 'An.Adult Entertainment. Business Land Use Permit approved '
pursuant to this article shall be deemed to nm with the land.
· B.... Should a grant of authority be sold, transferred or assigned by the
holder or by operation of law, :to any other person, ·group, partnership, corporation or
any .other party, and any such sale, transfer or assignment shall be deemed :to
constitute a voluntary surrender of such grant, and such grant shall be thereafter null
and void. A grant of authority permit held by an individual in a corporation or
partnership is subject to the same rules of transferability as contained above.
C. Any change in the nature or composition of the adult
entertainment business from one adult entertainment business to another type of adult
entertainment business shall also render the grant and the pemfit null and void. A
grant of authority and an Adult Entertainment Business Land Use Permit shall be valid
only for the exact location specified in the permit.
Sec. 41-1611. Development and Operating Standards.
The following development and operating standards shall be applied to
the operation of any adult entertainment business:
23
A. Hours of Operation.
1. It shall be unlawful for any operator or employee of an
adult business to allow such adult business to remain open for business, or to permit
any employee to engage in a performance, solicit a performance, make a sale, solicit a
sale, provide a service, or solicit a service, between the hours of midnight and 10:00
a.m. of any day.
2. The hours of operation of any adult business which has a
license from the State Alcohol Beverage Control Board shall be. governed 'by the
provisions of its Alcohol Beverage Control permit and notby this section. . ....
: '.' '7/ . .i' ."-" "..
', .. B. Exterior Lighting Requirements.
All exterior areas of the adult business shall be illuminated at a minimum
of 5.00 foot-candles, minimally maintained as defined in this Code, and evenly
distributed at ground level, with appropriate devices to screen, deflect or defuse the
lighting in such manner as to' prevent glare or affected light from creating adverse
impacts on adjoining and nearby public and private properties.
C. Interior LightingRequiremehts.
All interior areas of an adult entertainment business which are accessible
by 'the public shall be illuminated at a minimum of 10.00 foot-candle, minimally
maintained as del'reed in this Code and evenly distributed at floor areas.
D. Access Provision.
The operator shall not permit any doors on the premises to be locked
during business hours and, in addition, the operator shall be responsible to see that
any room or area on the premises shall be readily accessible at all times and shall be
open to view in its entirety for inspection by any law enforcement officer.
E. Minors' Access.
1. X-rated movies.
X-rated movies or video tapes shall be restricted to persons over 18
years of age. If an establishment that is not othe,.rWise prohibited from providing
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access to persons under 18 years of age sells, rents, or displays videos that have been
rated "X" or rated "NC-17" by the motion picture rating industry ("MPAA"), or
that have not been submitted to the MPAA for a rating, and which consist of images
which are distinguished or characterized by an emphasis on depicting or describing
"specified .sexual activities" or "specified anatomical areas", such videos shall be
located in a specific section of the establishment where persons under the age of 18
shall be prohibited, and shall not be visible from outside of the premises.
2. Other Adult Materials. Access to adult materials shall be
restricted to persons over 18 years of age.
.. . . .. 3. It shall be unlawful, fo.r...any .employee, owner,., operator, '
"i'i :'~::?e~/0nSibie managln, g employ~, i'nhfiager.0r~:perir/ittee of an adult enterthiitmeiit
business to allow any person below the age of eighteen (18) years upon the premises
or within the confines of any adult entertainment business, either as a patron or
employee, if no liquor is served, or under the. age of twenty-one (21) if liquor is
served.'
F. On-Site Manager; Security. Measures.
:::All adult businesses shall have a responsible person who shall be at least
18.years of age, or at least 21 years of age if the business has a license from ABC,
and shall be on the premises to act as manager at all times during which the business
.is open. The .individual or: individuals designated as the on-site manager shall be
registered by the owner with the Chief of Police or designee to receive all complaints
and be responsible'for all violations taking place on the premises.
The adult entertainment business shall provide state licensed security
guards to patrol and monitor the parking lot areas during all business hours. A sign
indicating compliance with this provision shall be posted on the exterior of the
premises between four to six feet from the ground and shall be in addition to the
allowable wall sign area pursuant to Article XI of this Chapter. The sign shall not
exceed two (2) feet by three (3) feet and shall at a minimum be one (i) foot by one
and a half (1~,~) feet and shall be placed in a conspicuous location designated by the
Chief of Police or designee.
At all times that the business is in operation and thereafter until all
patrons, employees and independent contractors have left the premises, at least one
security guard shall be on duty outside the premises, patrolling the grounds and
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399
parking areas, at all times while the busines~ is open. The security guard(s) shall
charged with preventing violations of law and enforcing compliance by patrons with
the requirements of this article. Any security guard required by this sub-section shall
be uniformed in such a manner as to be readily identifiable as a security guard by the
public. Except as provided by this section, provision of security guards shall be in
accordance with Chapter 24 of this Code. As specified in section 24-2, every security
guard employed shall first be approved, by the Chief of Police or designee, which
approval shall be granted no later than thirty (30) days from the date of submission.
No security guard required by this section shall act in any other capacity,
including but not' limited to doorperson, ticket seller, ticket take. r, or admittance
.:Zpe[son, while acting as a security guard.- ....:
G. Sign Requirements.
All adult entertainment businesses shall comply with the following sign
requirements, in addition to those of Article XI of this Chapter. Should a conflict
exist between the requirementg of Article XI and this sub-section, the more restrictive
shall prevail.
1. All exterior signs shali be fiat (i.e., not angled to the front
wall of the building) wall signs.
2. No merchandise or pictures of the products or
entertainment on the premises shall be displayed in window areas Or any area where
they can be viewed from the sidewalk in front of the building or any area accessible to
public pedestrians.
3. Window areas shall not be covered or made opaque in any
way. No sign shall be placed in any window. A one-square foot sign may be placed
on the door to state hours of operation and admittance requirements.
H. Live Entertainment-- Operating Requirements.
The following additional requirements
entertainment businesses providing live entertainment.
26
Shall pertain to adult
No person, association,
400
partnership, or corporation shall engage in, conduct or carry on, or permit to be
engaged in, conducted or carried on the operationof an adult entertainment business
that involves live entertainment unless each and all of the following requirements are
met:
1. No employee, owner, operator, responsible managing
employee, manager or permittee of such use shall allow any person below the age of
eighteen (18) years upon the premises or within the confines of any adult
entertainment bUsiness if no liquor is served, or under the age of twenty-one (21) if
liquor is served and the facility is not an eating establishment. .
· 2. · No person shall .dg. nCewi~ or otherwiseperform Within~s~
(6) ~et of a"i~tr0n whil~ performing for compensation or while on licensed prermses.
This six ·(6) foot separation shall be marked by a railing of at least thirty (30) inches in
height or other physical barrier designed to obstruct any contact between the'
entertainer and the patron(s).
3. No employee, owner, operator, responsible managing
employee, manager or permittee of such use shall allow any performer to dance or
otherwise perform within six (6) feet of a patron while performing for compensation
or while on licensed.premises.' This six (6) foot separation shall be marked by a
railing of at.least thirty (30) inches in height or other physical barrier designed to
.' .obstruct any. contact between the entertainer and the patron(s).
4. No owner, operator, responsible managing employee,
manager or permittee shall permit 6r allow at licensed premises any patron to
'approach within six (6) feet of a nude or semi-nude entertainer or entertainer
'displaying specified anatomical areas, or permit or allow such., an entertainer to
approach within six (6) feet of a patron.
5. All employees of an adult entertainment business, other
than nude or semi-nude entertainers while performing, shall, at a minimum while on
or about the licensed premises, wear an opaque covering which covers their specified
anatomical areas.
6. If patrons wish to tip performers, receptacles shall be at
least six (6) feet from the stage or other area use by the performers. Patrons shall not
provide tips directly to the performers or place tips in the performers' costumes.
7. When patrons are at the establishment, no patron shall be
2'7
401
allowed to directly touch, fondle or caress a performer, as those terms are defined in
Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), nor shall any performer
be allowed to directly touch, fondle or caress a patron. This prohibition does not
extend to incidental touching. Patrons shall be advised of the separation and no
touching requirements by signs placed on the barrier described in sub-section 3,
above.
8. The adult entertainment business shall provide dressing
rooms for performers which are separated by gender and exclusively dedicated tO ~e
perfo, rmers' use and which the performers shall use for changing at all times.
Performers may share a d[essing room. No owner, operator, responsible'managing
emp!oyee, manager or perm!tt, ees. hall. P.e. rmit. or allow at licensed premises any.pa~on
tO be present in such dressing rooms.
9. The adult enterthinment business shall provide an
entrance/exit for performers which is separate from the entrance/exit used by patrons,
which the performers shall use at all times.
10. The adult entertainment business shall provide access for
performers between the stage and dressing room which is completely separated from
the patrons. If such separate access is not physically feasible, the adult entertainment
business shall provide a minimum three-foot wide walk aisle for performers between
the dressing room area and the stage, with a railing, fence or other physical barrier
separating the patrons and the performers capabl~ or (and which actually results in)
preventing any physical contact between the patrons and performers. Nothing in this
section is intended to exempt the adult entertainment business from compliance with
the provisions of Title 24 of the California' Code of Regulations pertaining to
handicapped accessibility.
11. The adult entertainment business shall have a sign posted in
a conspicuous place at or near each entraneeway to the establishment which lists the
tifles and prices of all offered entertainment,
I. Adult Dancing Establishment.
An adult dancing establishment or adult cabaret shall have a stage
provided for the display or exposure of any specified anatomical area by an employee
to a person other than another employee consisting.of a permanent platform (or other
similar permanent structure) raised a minimum of eighteen (18) inches above the
28'
402
surrounding floor and encompassing an area of at least one hundred (100) square feet,
separated by a distance of at least six (6) feet from the nearest area occupied by
patrons and surrounded with a three (3) foot high barrier. No patron shall be '
permitted within six (6) feet of the stage while the stage is occupied by a performer;
and
ii. Theater and Cinemas.
· A.theater or cinema shall observe the following special requirements:
1. If the theater or cinema contains a hall or auditOrium area,
the area s. hall comply with each of the following provisions: ·
a. Hav~ individual, separate seats, not couches,
benches, or the like, to accommodate the maximum number of persons who may
occupy the area;
b. ~ Have a continuous main aisle alongside of the seating
· areas in order that each person seated in the areas shall be visible from the aisle at all
times; and ·
c.:. ;Have a sign POsted in a conspicuous place at or near
each entranceway.to.the hall or. auditorium area:which lists'.the maximum number of
persons who may occupy the hall.or, auditorium area, ~vhich number shall notlexceed
the number of seats within the hall or auditorium area. ~ .
· 2. If an adult theater or adult cinema contains adult booths,
each adult booth shall comply with each of the following provisions:'
a. Have a sign posted in a conspicuous place at or near
the entraneeway which state~ the maximum number of persons who may occupy the
booth, which number shall correlate with the number of seats in the booth;
b. Have a permanently open entranceway not less than
two (2) feet wide and not less than six (6) feet high, not capable of being Closed or
partially closed by any curtain, door, or other partition which would be capable of
wholly or partially obscuring any person situated in the booth;
c. HaVe individual, separate seats, not couches,
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40'3
benches, or the like, which correlate with the maximum number of persons who may
occupy the booth;
d. Have a continuous main aisle alongside the booth in
order that each person situated in the booth shall be visible from the aisle at all times;
and
e. Have, ekcept for the entmnceway, walls or partitions
of solid construction without any holes or openings in such walls or partitions.
3. If an adult theater or adult cinema is designed to permi~
.... outdoor viewing by persons seated in. automgb, iles, it shall have the motiOh pidtu.re
screen' so ~ittia[ed,'~r' ~d perimete~ 3~"th~'~stablishmen't so fenced,' that the mate~iaflo
be seen by those persons may not be seen from any public right-of-way, property
zoned for residential use, religious assembly, school, public or private, or park or
recreation area.
Sec. 41-1612. Applicability to Other Regulations.
The provisions of this Article are not. intended to provide exclusive
regulation of the regulated expressive business usesi' Such uses must comply with any '
and all applicable regulations imposed in other articles of the zoning code, other city
ordinances and state and federal law. Should a conflict exist between the provisions.
of this Article and the provisions of other Articles of Chapter 41 of the Municipal
Code, the provisions of this Article shall.prevail. '
Sec. 41-1613. Violations.
In addition to any other remedies provided by law or set forth in this
chapter, including but not limited to injunctive relief, failure to comply with any
requirement of this Article shall constitute a misdemeanor punishable as set forth in
section 1-8 of this Code.
SECTION 9.
Section 1-19, subsections a. and b. of the City's Code are hereby
amended to read as follows, and subsection c. of section 1-19 shall be renumbered as
subsection e. but otherwise be unchanged:
Limitations on Action. Any .action or proceeding 'to attack,
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review, set aside, void or annul any decision made pursuant to this Code relating to
any right or entitlement allowed or authorized by this Code, including, but not limited
to, conditional use permits, variances, minor exception, code compliance certificate,
certificates of appropriateness, interpretations of the planning manager, and each and
every other permit, entitlement, revocation, or grant allowed or authorized by this
Code, and decisions to change a district classification, or use or development
regulation, or concerning any of the proceedings, acts, or determinations taken, done,
or made prior to such decision, or to detemxine the reasonableness, legality, or
validity of any condition attached thereto shall not be maintained by any person unless
the action or proceeding is commenced within 90 days and the board or final decision-
maker is served within 120 days after the date of the decision. Thereafter, all persons
are barred from any such action or proceeding or any defense of invalidity or
unreasonableness of the decision or of the proceedings, acts, or detexminations.
Provided, however, that challenges to determinations made pursuant to the California
Subdivision Map Act shall be governed by the provisions of California Government
Code section 65499.37, as it may be amended from time to time.
b. Exhaustion of Administrative Remedies. Nothing in this section
shall relieve a person desiring to attack, review, set aside, void, or annul any decision
or the proceedings, acts, or determinations taken, done, or made prior to such
decision from their obligation to exhaust their administrative remedies prior to
commencing any action or proceeding.
c. Limitations on Issues. In an action or proceeding to attack,
review, set aside, void or annul a finding, determination, or decision made pursuant to
this title at a properly noticed public hearing, the issues raised shall be limited to those
raised in the public hearing or in written correspondence delivered to the city prior to,
or at, the public hearing, except where the court finds either of the following:
1. The issue could not have been raised at the public
hearing by persons exercising reasonable diligence;
2. The body conducting the public hearing prevented
the issue from being raised at the public hearing.
These limitations shall apply only if the public notice issued
pursuant to this title contains substantially the notice set forth in Government
Code Section 65009(B)(2), or in any successor section enacted after the
effective date of this section.
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d. Notice of Determination. Notice of the decision-maker's
decision and its written findings shall be mailed by first-class mail, postage
prepaid and including a copy of an affidavit or certificate of mailing, to the
applicant and any interested person. Such notice shall include direct notice that
the time within which judicial review of the decision must be sought is
governed by California Code of Civil Procedure section 1094.6.
SECTION 10.
Repeal of Emergency Ordinance. Ordinance No. NS-2372 of the City, an
emergency ordinance regulating adult entertainment businesses, shall be repealed as of
the effective date of this Ordinance; provided, however, that should enforcement of
this Ordinance be enjoined by a Court of competent jurisdiction prior to its effective
date, then Ordinance No. NS-2372 shall remain in full force and effect.
SECTION 11.
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.
ADOPTED this 7~ch day of December, 1998.
ATTEST:
Mayor
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COUNCILMEMBERS:
Pulido
Lu~z . .i Aye
Bist Aye
Christy Aye
Franklin' Aye
McGuig~n Aye
Moreno
APPROVED AS TO FORM:
Joseph W. Fletch/e~/City Attorney
/Chi~AssistanfCity Attorney
CERTIFICATE OF ORIGINALITY & PUBLICATION
I, JANICE C. GUY, Clerk of the Council, do hereby certify the attached Ordinance
No. A/$,a.~?3 to be the original ordinance adopted by the City Council of the City
of Santa Aha on /~,/-7 /4 $ ; and that said ordinance was published in
accordance with the Cha'rter'of the City of Santa Aha.
Date: /~/~ /q oc ~~_3~,, , ~ ;,7-
' '' //.Greek of the CounCil
"'City of Santa Ana
33