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HomeMy WebLinkAbout11 ORDINANCE NO. 1196 02-17-98 n k 1r • o. �, 2-17 98 Inter- Corn ?''•a'' DATE: * FEBRUARY 17, 1998 GIsecs WILLIAM A. HUSTON, CITY MANAGER fj� `_ //Q TO: (JL�C� f"(.�f 7 Ca ,t4-3 )V COMMUNITY DEVELOPMENT DEPARTMENT FROM: ( URGENCY ORDINANCE NO. 1196 - CONSIDERATION OF THE CITY OF TUSTIN a SUBJECT: COMPREHENSIVE SEXUALLY ORIENTED BUSINESS ORDINANCE �(/v Summary: Urgency Ordinance No. 1196 would establish a comprehensive ordinance related to sexually oriented businesses in the City of Tustin. If adopted, the ordinance would disperse and limit sexually oriented businesses to specified zoning districts; regulate and license sexually oriented businesses, owners and employees; provide additional health and safety regulations for sexually oriented businesses; and,s repeal the applicable sections of the Tustin City!Code. The proposed ordinance regulates the secondary effects associated with sexually oriented businesses while preserving the First Amendment rights afforded to these uses to locate within the City. Area of Applicability: Citywide Recommendation: That the City Council adopt Urgency Ordinance No. 1196 by a 4/5ths vote. Fiscal Impact: There are no direct fiscal impacts associated with the Council's adoption of this urgency ordinance. If a sexually oriented business is established within the City, there will be an increased demand for Police and Code Enforcement Services. These costs will be off-set through the annual permit fees Background: Because of changes in case law within recent years, the Tustin City Code Sections related to Sexually Oriented Businesses (also referred to as "Adult Businesses") does not adequately regulate these uses. These uses are permitted in the City's traditional commercial zoning districts surrounded by sensitive uses. Conditional use permits and/or modified conditional use permits are required for sexually oriented businesses to locate in the City, but no standards of operation (i.e. security, lighting, licensing, etc.) are identified. A revision to these sections was being prepared along with a comprehensive zoning code revision. However, facts have come to our attention that necessitate a more prompt revision to the sections on sexually oriented businesses. Recently, the Community Development Department has received a number of inquiries to establish sexually oriented businesses within the City. It is difficult to ascertain whether or not these inquiries are legitimate or opportunities for those so inclined to file lawsuits. Due to the increased interest in locating these uses within the City and the . Urgency Ord. No. 1196 February 17, 1998: Page 2 • • lack of adequate processing or operating standards, staff has prepared this urgency ordinance. Unlike other land uses, sexually oriented businesses may not be subjected to a moratorium. As noted in the Draft Ordinance, the City Council must find that the lack of appropriate development and location standards of adult type uses poses an immediate threat to the public health, safety, and welfare. Discussion: Review of Related Studies and Secondary Effects The issues associated with sexually oriented business are not unique to the City of Tustin. For a number of years, cities have been struggling with how best to regulate sexually oriented businesses. The City has reviewed the following studies that substantiate the adverse, secondary effects of sexually oriented businesses including but not limited to: Upland, California (1992); Santa Maria, California (1993); Garden Grove, California (1991); Phoenix, Arizona (1986); Minneapolis, Minnesota (1980); Houston, Texas (1983); Indianapolis, Indiana (1984); Amarillo, Texas (1977); Austin • Texas (1986); Seattle, Washington (1989); Oklahoma City (1986); Beaumont, Texas (1982); and Whittier, California (1978); and, the State of Minnesota Attorney General's Working Group in the Regulation of Sexually Oriented Businesses (1986). These studies identify that sexually oriented businesses present several real and potential problems to cities in which they are located. Such impacts or as the Courts have called them 'Secondary effects" of sexually oriented businesses include: the increase in crime rates within the businesses themselves and the areas that surround them; the establishment of blight and downgrading of the areas in which such businesses are located; a decrease in property values; and the reduction in non-adult businesses which are willing to locate in the vicinity of adult businesses. Furthermore, as indicated in the 1986 State of Minnesota Attorney General's Working Group Report, the combination of multiple adult use businesses within one building or in close proximity compounds the secondary effects associated with a single adult business. Consequently, it is appropriate to regulate the secondary impacts of these businesses without regulating the content or the communicative elements of the businesses themselves. Studies to be Undertaken By the City During the Effect of the Urgency Ordinance During the effect of this interim ordinance, the City will continue to conduct studies, surveys and questionnaires of real estate appraisers, businesses owners, residential owners, and parents in Tustin; and, continue to collect various studies and ordinance pertaining'to the secondary effects that adult businesses produce. Common Issues and Questions The following is a summary of the issues and commonly asked questions associated . with establishing regulations for sexually oriented business and the associated secondary effects. These issues and questions include: • . Urgency Ord. No. 1196 February 17, 1998: Page 3 • • Why is the City compelled to adopt an urgency sexually oriented business ordinance? Al Are there currently any sexually oriented businesses operating in the City? Are there currently any sexually oriented business applications pending? What are the approaches used by other jurisdictions? l Can the City Ban Sexually Oriented Businesses? What constitutes enough sites? Al Can the City use the fact that sexually oriented businesses are located in adjacent communities as being adequate so that the City of Tustin can ban such uses? l Can the City use its power of taxation to penalize these businesses? 1 How will the costs be off-set to license and monitor these premises? ✓ Why is the City compelled to adopt an urgency sexually oriented business ordinance. The City of Tustin has not comprehensively updated its ordinance since 1985 and inquiries have been made by operators to locate in Tustin. Several Court decisions pertaining to this area of the law have been issued since 1985 (Attachment B). Under the current ordinance, the City uses a modified conditional use permit process to control Sexually Oriented businesses, and there are no operational restrictions (i.e. hours of operation, lighting, security, licensing of employees, etc..) In 1993, the Federal District Court - Central Division, invalidated a similar ordinance in the City of Anahiem. In part, the Court concluded that the Conditional Use Permit process provided the City with too much discretion for a use protected by the First Amendment to the United States Constitution. The lawsuit cost the City of Anahiem several thousands of dollars in legal expenses and permitted the business to establish in a sensitive area. To avoid such a consequence, the City of Tustin must deal with these uses without using the Conditional Use Permit process and, establish by ordinance, operational regulations. ✓ Are there currently any sexually oriented businesses operating in the City? As far as we know,there are none. V Are there currently any sexually oriented business applications pending? The City is not considering any formal applications at this time. Recently, the City and adjacent jurisdictions have received inquiries in this regard. V Approaches by Other Jurisdictions Detroit: Young v. American Mini-Theaters In 1976, the U.S. Supreme Court ruled on a City of Detroit ordinance which was designed to separate adult businesses from each other, and more particularly, from certain regulated or sensitive uses. The Detroit ordinance was upheld based on a study the City had conducted which found that adult businesses tended to degrade an Urgency Ord. No. 1196 • February 17, 1998: Page 4 • area, raised crime rates, and lowered property values. Furthermore, the City found in its study that these businesses create certain effects beyond the boundaries of the business which posed a risk to adjoining neighborhoods. The U.S. Supreme Court in deciding Young v. American Mini Theaters upheld the Detroit ordinance to the extent it regulated these `Secondary effects"and found that the distancing requirements were not per se unconstitutional. Consequently, one. approach jurisdictions have taken is that if adult businesses must be permitted in the City, then it is important to ensure that they are separated from sensitive uses such as residences, schools, churches, etc. Renton v. Playtime Theaters Another approach used by the City of Renton, Washington, was the setting aside of a place or places in town where these businesses would be permitted. The Renton Ordinance was upheld by the Supreme Court in 1986, City of Renton v. Playtime Theaters, as a content-neutral time, place, and manner ordinance. The City of Renton determined that it was more appropriate to concentrate these uses in a particular section or sections of town where they were clearly separated from other sensitive uses and where the City could more appropriately target its resources to ensure that the secondary effects of these businesses did not spread. In other words, the City of Renton determined that if they must have such uses, they would set aside a certain portion of the town for the uses wherein they could "keep an eye" on them. Combination of Renton and Detroit A number of cities, more recently, have attempted to combine the separation established by the Detroit case with the separation from other sensitive uses and other businesses upheld in Renton. In this way, the secondary effects are regulated by disbursing them throughout various zoning districts and then separating any adult businesses which may come into existence from other adult businesses to avoid the • combination of secondary effects. This manner of regulation of adult businesses is generally acceptable so long as an adequate number of sites are available within the City for these businesses to operate. While various courts in California have ruled that 4 - 6 sites are not sufficient as a matter of law, the courts have not established a formula or clear guidance on the number of sites that must be available. ✓Can the City Ban Sexually Oriented Businesses The United States Supreme Court has ruled that certain sexually oriented businesses are forms of 'Speech" and are thus protected by the First Amendment. The United States Supreme Court and other State and Federal Courts have repeatedly struck down state and local efforts to ban the location and operation of adult businesses — either directly through an out-and-out ban, or indirectly through a prohibitive regulatory scheme. However, the Courts have held that local jurisdictions may zone adult uses in appropriate locations to prevent the secondary effects that such businesses may• produce. Ordinances regulating the uses must be designed to be tontent neutral"with respect to time, place, and manner and focus on reducing the 'Secondary effects"of adult businesses while providing "reasonable alternative avenues of communication." - • Urgency Ord. No. 1196 February 17, 1998: Page 5 • • Recently, the City of Westminster lost a case in which the City attempted to ban a Sexually Oriented Business. As a result, the court ordered the City of Westminster to issue a permit for the adult business without regard to appropriate development standards. ✓ Can the City Use its Power of Taxation to Penalize these Businesses? No. Cities have attempted to impose high taxes (tin taxes) on adult business to discourage them from locating within their respective jurisdictions. The U.S. Supreme Court has held that the power to tax is the power to censor. (Murdock v. Pennsylvania [1943] 319 US 105). More recently, the Court of Appeals has held that a city has the . power to tax all business, including First Amendment protected businesses if the tax is equally applied to all businesses in the same category. (Times Mirror v. City of Los Angeles, (1987) 237 Cal. 346). Accordingly, such businesses may not be singled out. V How will the cost be off-set to license and monitor these premises? While the City may not apply a discriminatory tax on adult businesses, it may approve fees that are reasonably related to issuance of permits and monitoring of the business. There will be higher inspection and monitoring costs for these activities and the courts have recognized that these fees are appropriate to impose if they are reasonably related to the City's costs. (Genesa v. Peoria 619 F2d 1202; Bayside Enterprise v. Carson 470 F. Supp 140). 'I What constitutes enough sites? As indicated, neither the U.S. Supreme Court nor the California Supreme Court has determined or defined what constitutes an adequate number of sites for any jurisdiction. However, the courts have identified when there are not enough areas — See Attachment B. In the Renton case, the community's ordinance allowing such uses in specific zones was upheld. Renton had a population of 32,000, and set aside 520 acres (five percent of the total land area). In Cox v. Stanton 255 Cal Rptr.2d 682, the city was held to not have allowed adequate sites for adult uses. Stanton has a population of approximately 32,500. The City had set aside 5 percent of its areas for such uses, but required a 1,000 foot separation between adult uses which further limited available sites. V Can the City use the fact that sexually oriented businesses are located in adjacent communities as being adequate so that the City of Tustin can ban such uses. The law provides that cities must allow adequate sites and cannot rely on neighboring cities to justify a ban. In Schad v. Mount Ephraim [1981] 452 US 61, the Court held that this small residential borough could not preclude such businesses, although there was evidence that adequate businesses were in surrounding areas. Further, the Supreme Court held that such an argument could not provide a basis for constitutionality because there was no county-wide zoning. Urgency Ord. No. 1196 February 17, 1998: Page 6 • • • The City of Tustin's Approach The attached Ordinance uses a combination of the Renton and Detroit approaches, by locating these uses in zoning districts away from sensitive uses and providing distancing between sexually oriented businesses. The complete draft ordinance with appropriate findings are attached (Attachment A). The list below highlights the major provisions of the urgency ordinance. • The ordinance establishes that the purpose and intent of the proposed ordinance is to regulate sexually oriented businesses to reduce the related secondary negative impacts while preserving the First Amendment rights to locate these uses within the City. • The ordinance comprehensively defines those uses that constitute sexually oriented • businesses; • The ordinance establishes the PCMU, PC-C, PCC, M, and PC-IND zoning districts as permitted areas where these uses may locate. Approximately 400 acres or nine percent (9%) of the City's area would be available for such uses. The City's area excludes MCAS, Tustin and public right-of-way areas. In our opinion, this is a reasonable number of acres/sites. • A minimum distance of 500 linear feet must be provided from residential, church, park, schools, and other similar sensitive uses; and a minimum distance of 500 linear feet is required between sexually oriented businesses. These distances are measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of the business to the nearest property line of sensitive uses. • A minimum of 500 linear feet between Sexually Oriented Businesses as measured from the nearest point of one business to another must be maintained. • Based on the allowable zoning and distance requirements, there are approximately 150 available sites. In our opinion, this is an adequate number of sites. • The Ordinance establishes advertising, lighting, security, and operational requirements. • Businesses would be prohibited from operating between the hours of 12:00 a.m. and 9:00 a.m. • Background investigations on the owners and employees of sexually oriented businesses would be required. Employees will be separately licensed. • The ordinance requires an application fee and an annual permit fee that relates to the administrative costs for the City to implement and enforce this sexually oriented business ordinance. The application fee will include the cost to conduct the background investigation and issue the permits. The annual fee will include personnel costs for City staff to inspect the premises and enforce the provisions of the ordinance. A preliminary estimate for these costs is $1,000.00 for the application and for the annual permit fee. Urgency Ord. No. 1196 February 17, 1998: Page 7 • • The City Attorney has reviewed and approved the content and form of the proposed ordinance. State Code Requirements: The City Council has the authority to adopt an interim urgency ordinance if the Council finds there is an urgent need to protect the public health, safety and welfare. The fact constituting the urgency are set forth in this staff report and in the ordinance. Urgency ordinances require a 4/5ths vote of the City Council and are effective immediately. Urgency ordinances can be effective for a period of 45 days from the date of adoption, and can be subsequently extended for an additional 22 months and 15 days if noticing and public hearing procedures are followed. If adopted, Urgency Ordinance No. 1196 will expire on April 2, 1998. Staff anticipates scheduling a noticed public hearing for this extension for the Council March 9, 1998 meeting Environmental Determination: Ordinance No. 1196 either provides for the amendment of existing regulations applicable to Sexually Oriented Businesses or, for the first time, provides for zoning regulations which are specifically applicable to Sexually Oriented Business uses. Such uses are allowed under the City's existing zoning regulations. Therefore, it can be seen with certainty that there is no possibility that this ordinance may have a significant adverse effect on the environment, and therefore the adoption of this ordinance is exempt from CEQA pursuant to Section 15061 (b) (3) of the CEQA guidelines. e At Elizabeth A. Binsack Community Development Director Attachments: A. Draft Urgency Ordinance No. 1196 B. Case Studies — Due to the voluminous nature of these studies, these documents are available for review in the Community Development Department; however, a summary of leading pre- and post- Renton cases is attached hereto. eab\agenda\sobsr • • ATTACHMENT B Case Studies Due to the voluminous nature of these studies, these documents are available for review in the Community Development Department. A summary of leading pre- and post- Renton cases is attached hereto. . • • Post-Renton Cases Discussing Alternative Avenues of Communication for Sexually Oriented Businesses CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/ TEST • UPHELD ? Renton v. Playtime 1,000 feet from Yes Pop: 32,000 The ordinance must be Theatres, sensitive uses, Available land: 520 "designed to serve a 475 U.S. 41 (1986). and within one acres, which=s 5%of substantial governmental mile of a school total land. interest and [must allow] for • reasonable alternative avenues of communication.." Function Junction. Inc. v. 400 feet from Yes A city official testified Without evaluating City of Daytona Beach,705 sensitive uses& that 8 adult uses could exactly how much land is ' F. Supp. 544 (M.D. Fla. 1,000 feet from located on the 12 enough, the court found the • 1987). another adult available sites. ordinance was reasonable. business 12 sites were available. "While a city may limit alternative avenues of communication, it may not limit them `unreasonably,' and `what is reasonable cannot be ascertained by reference to nothing except • the wishes of the nude bar proprietors." 705 F. Supp. at 552(quoting International Food & Beverage Systems, • 794 F.2d at 1526). S &G News. Inc. v. City 1,000 ft of Yes 2.3% of total land was "Southgate clearly allows of Southgate, 638 F.Supp. another adult available for adult • sufficient alternative means 1060 (E.D. Mich. 1986), business or uses. City population: of expression, since adult aff'd without published within 500 ft of 30,647 City land: uses are allowed in . . .2.3 opinion, 819 F.2d 1142 a residential 4,400 acres of land'(or per cent of the land in (6th Cir. 1987). dwelling 6.9 square miles). Southgate.' 638 F. Supp.. at 1066. International Food & 750 feet from Yes City has 31 square Ordinances may ban• . Beverage Systems v.City sensitive uses or miles and population establishments completely of Fort Lauderdale, 794 other adult of 156,000. which sell alcohol and F.2d 1526 (1986), on businesses • -More than 10 adult provide nude entertainment, remand to, 664 F. Supp. bars were in existence. so this ordinance which 482 (S.D. Fla. 1987),aff'd, -22 to 25 available merely adds time, place and 838 F.2d 1220(11th Cir. sites (10 of which manner restrictions is OK. 1988) were locations where "We are at a loss how [the adult uses already district judge] could existed). determine as many as 22 sites for such bars were not enough . . ." The city may restrict businesses,just not unreasonably. 4 • • • CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/TEST UPHELD ? County of Cook v. Ordinance Yes Total County land: This was reasonable even Renaissance Arcade& restricts adult 190.59 square though available land was in Bookstore, 522 N.E.2d 73 uses to 78 miles. undesirable industrial area (III. 1988). industrially 10.8 square miles was where water and sewer were zoned areas, and permissible for adult inaccessible. in 245 businesses, which was commercially 5.7 percent of total zoned areas. land or 8.9 percent if No more than the Cook County 2 adult Forest Preserve was businesses excluded. within 1,000 foot radius. Walnut Properties v. City 1,000 feet of NO--held adult 99.5 acres were Court said that the 1,000 foot of Whittier,861 F.2d 1102 another adult businesses were available,which was barrier between adult (9th Cir. 1988), cert. business. effectively / 1.4% of the land. businesses was what denied 490 U.S. 1086 precluded. distinguished this case from (1989). Renton. Total acreage available doesn't matter. because the 1,000 foot barrier imposes a 72 acre buffer around each adult business. Ordinance would require the only adult theatre in town to close with no definite prospect for a location to relocate,this denies reasonable opportunity to operate an adult business. . City of Stanton v.Cox,255 500 feet from NO City consisted of 3.5 Given the City's relatively Cal.Rptr. 682(Cal.Ct. sensitive uses, square miles.=Cty-,,, small geographic size,the App. 1989). and 1,000 feet estimated 5%of area,- double restriction in the from another would be available,-tut ordinance(1,000 feet adult business when consider the between adult businesses & requirement that adult 500 feet separation from businesses be • sensitive uses) leaves little separated from one opportunity for adult another by 1,000 feet businesses to operate within the amount of the City. permissible land The Court reported that would be even less. other courts have frequently • found that the 1,000 foot separation requirement between adult businesses fails to leave adequate opportunity for adult businesses to operate. Bonnell, Inc. v. Board of 5 year Yes 44 locations available Adequate alternative Adjustment, 791 P.2d 107 amortization. totaling 1,100 acres. locations available. (Okla. Ct. App. 1989). • • • • CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/TEST UPHELD ? • • Town of Islip v.Caviglia, Must be in Yes Adult businesses Alternative avenues of 73 N.Y.2d 544, 540 industrial zones, could locate on over expression were available. N.E.2d 215 (1989). and further than • 6,000 acres, including The total number of adult 500 feet from 85.6 miles of running businesses would not sensitive uses frontage on open decrease. • roads. Town =92 sq. miles Population=300,000 SDI. Inc. v. City of 750 feet,and Yes No specific statistics Adequate alternative sites Houston, 636 F. Supp. 1,000 feet from given. Court stated were available. To be 1359 (S.D.Tex. 1986), another adult generally that available the"sites need not • affd, 837 F.2d 1268 (5th business • "hundreds" of sites be commercially viable." • Cir. 1988),cert. denied, were available. 837 F.2d at 1277. 489 U.S. 1052 (1989). • Southern Entertainment 1,000 feet from Ordinance City population: Fact that 6 of the, 11 sites Co.of Florida, Inc. v. City sensitive uses content was 45,000 were currently unavailable of Boynton Beach, 736 F. and other SOBs found valid,but City land: 15.75 was not a relevant factor. 11 Supp. 1094 (S.D. Fla. ordinance square sites was found adequate.• • _ 1990). deemed void for miles. Procedural rules were • failure to 11 sites available for violated when ordinance was comply with - :adult businesses, or enacted. statutory 3.25 %of total land.. Alternative sites do not procedural rules -- need to be practically or • commercially viable. Dumas v. City of Dallas, 1,000 feet Yes 8 to 10 percent(21,000 648 F. Supp.. 1061 (N.D. 3 year acres) of city land was • Tex.),aff'd sub. norm amortization available. • FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988), rev'd on other grounds, 493 U.S. 215 (1990) Brookpark News & Books, 1,000 feet from NO / 3.6 acres out of a total This percentage of available Inc.v. City of Cleveland, sensitive uses or --==of-48,384 acres were land is"unduly restrictive 585 N.E. 2d 908 (Ohio Ct. from any other available for adult uses and significantly curtails App. 1990). adult (.00007%of total) . freedom of expression and businesses. access to protected speech." 585 N.E.2d at 911. Alexander v. City of New ordinance Yes Available land: 120 This provided an adequate Minneapolis, 928 F.2d 278 restricting adult • sites or 6.6%of total number of alternative sites. (8th Cir. 1991) businesses to land. one particular district. 11 • CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/ TEST UPHELD ? • Woodall v. City of El Paso, 1,000 feet • Remanded for Ordinance allowed for Court remanded to exclude 950 F.2d 255 (5th Cir.), consideration by 59 businesses on from consideration land with modified, 959 F.2d 1305 jury under new 1,165 acres, which is physical characteristics (5th Cir. 1992) (per test of what land 1% of El Paso's making it unavailable for any curiam), cert. denied, 113 is to be 158,000 acres. All 39 type of development,and S.Ct. 304(1992). considered of the existing adult land with legal characteristics available. businesses were making it unavailable for • required to relocate. adult businesses. Lakeland Lounge v. City of Yes 4 locations with 8 to The definition of"available" . • Jackson, 973 F.2d 1255 10 sites were available does no mean the adult (5th Cir.), rehearing for adult businesses. business has to expect to denied, 979 F.2d 211 Precise number of profit by opening there. (1992). sites unknown, but Locations undesirable for court found "a economic reasons are not substantial number of excluded from alternative . potential sites do relocation areas. exist." "There is no requirement 1 6 adult businesses in Renton, Woodall,or existed at the time. elsewhere that a specific proportion of a municipality be open for adult businesses or that a certain number of sites be available." "Given the limited demand for adult businesses [there were only],this • ordinance does not reduce the number of establishments that can open in Jackson, so it does not limit expression." D.G. Restaurant v. City of 500 feet Yes 26 potential sites. adult businesses' argument Myrtle Beach,953 F.2d that the available sites were in 140(4th Cir. 1992). • poorly lit industrial areas, far from tourists was rejected by the court. The businesses could still "convey the message to those looking for such 'enlightenment."' International Eateries of 500 feet from a Yes 26 available sites for . The ordinance provided America v. Broward residential area adult businesses to reasonable alternative County, 941 F.2d 1 157 & 1000 feet relocate. avenues of communication. (11th Cir. 1991),cert. from a church City population The adult use business • denied, 112 S.Ct. 1294 or school • greater than 1 million. owner unsuccessfully argued • (1992). City consisted of 410 that the ordinance was not square miles of Florida narrowly tailored to serve the coast, and the stated government interest. unincorporated city . was 150 square miles. 4 adult uses were in existence in 1991. • • • CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/ TEST UPHELD ? T-MARC v. Pinellas 400 feet from Yes 123 acceptable sites The fact that several of the County, 804 F. Supp. 1500 sensitive use or , available. 123 sites might actually be (M.D. Fla. 1992). other adult unavailable or economically businesses. unfeasible is of no 1 year consequence." Court found amortization this to be even more than period found what was required. reasonable. Janra Enterprises v. City of 500 feet from NO 3 available sites This did not provide Reno, 818 F. Supp. 1361 sensitive uses, Preliminary Reno=55 square miles constitutionally sufficient (D. Nev. 1993). and 900 feet injunction alternative means of from businesses granted to stop communication. which hold the city from City conceded that liquor licenses. enforcing the ordinance was more ordinance. restrictive than necessary. City of National City v. 1,000 feet from Yes City population: Assertion that shopping Wiener, 838 P.2d 223 (Cal. a residential area 57,000 centers do not usually rent to 1992),cert. denied, 114 and 1,500 feet Total land: 8.65 sq. adult businesses was not S.Ct. 85 (1993). from other adult miles/5,536 acres. considered by court because businesses, Adult businesses could the government is not . schools,or - locate anywhere in the responsible for private public parks. 572 acres (10%), business decisions. --unless within which are Court found"no authority an enclosed commercially zoned, that mandates a constitutional mall. • - within an enclosed ratio of adult businesses to a mall. particular population figure." 3 permissible 838 P.2d at 848. shopping malls already . existed, and more could be built. O'Malley v.City of Yes At least 4%of the city Acceptable alternative Syracuse, 813 F. Supp. 133 was available for adult locations. (N.D. N.Y. 1993). uses, and if added to that partial lots or lots that didn't front roadways, the percentage rises to more than 5%. • • CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/TEST UPHELD ? Topanga Press,Inc. v.City 500 feet from NO 11,613.1 acres were Although 120 sites for the of Los An eelles,989 F.2d sensitive uses, definitionally available; 102 current adult businesses 1524(9th Cir. 1993), as & 1000 feet 7,440.9 acres were initially looks sufficient, amended 1993 U.S. App. from other adult realistically available when the 1,000 foot LEXIS 9423,cert. denied, businesses. for adult businesses, restriction between adult • 114 S.Ct. 1537 (1994). holding approximately businesses is computed this 120 sites. would severely limit the 102 adult businesses actual number of sites existed at time of available because much of decision. the land permissible for adult businesses was grouped together. A 1,000 foot restriction keeps any other adult uses from locating within a contiguous 72 acres circle around another adult use. Court developed a five factor test to determine if relocation sites are "realistically available"for adult businesses. The core of the test is that the"property is not potentially available when it is unreasonable to believe that it would ever become available to any commercial enterprise."p. 1531. Holmberg v. City of 1,000 feet Yes 35% of commercially • Ramsey, zoned land was 12 F.3d 140(8th Cir. available. 1994). • • CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/ TEST UPHELD ? 11126 Baltimore Blvd. v. 500 or 1,000 Upheld, but then 20%of county is Prince George's County, feet Supreme Court residential(no adult 886 F.2d 1415 , vacated vacated and uses). and remanded without remanded 20 sites,constituting comment, 496 U.S. 901, without 1,400 acres, were 924 F.2d 557 (4th Cir. comment. found to be 1991). 4th Circuit permissible. Court of 6% of 22,500 acres in Appeals decided county were zoned for because the commercial and County rewrote industrial use. the ordinance, it was no longer necessary to decide the issue. Thames Enterprises, Inc. v. 500 feet from NO 1,000 foot restriction struck City of St. Louis, 851 F. 2d sensitive uses. down. 199 (8th Cir. 1988). 1,000 feet of another adult business unless can obtain a waiver from neighbors. Cornerstone Bible Church time, place and Yes 45% of land was v. City of Hastings, 740 F. manner available. Supp. 654(D. Minn. restriction on 1990). location of a • church United States Partners 1,000 feet Yes No pertinent • Financial Corp. v. Kansas information. City, 707 F. Supp. 1090 (W.D. Mo. 1989). ' City of Daytona Beach v. Laws banned Yes Del Percio,476 So.2d 197 nudity in places (Fla. 1985). where alcohol was sold. New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981). 15192 Thirteen Mile Road, 500 or 1,000 Yes No discussion of Inc. v. City of Warren,626 feet relevant numbers. F. Supp. 803 (E.D. Mich. 1985). • S CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/ TEST UPHELD ? • Patel and Patel v. City of Ordinance NO Court found there was no San Francisco, 606 F. regulated motels evidence adult motels,as Supp. 666 (N.D. Cal. which showed opposed to adult businesses 1985). adult films bring about neighborhood ("adult deterioration. motels"). ATS Melbourne, Inc. v. Adult Yes 3 zones were provided Without giving any statistics, City of Melbourne,475 businesses within the city for adult court found that there was no So.2d 1257 (Fla.Dist.Ct. could locate uses evidence that the"number of App. 1985). only in "C-3" locations where adult zones,and after businesses [could] operate in getting a [the city had] been "conditional use significantly restricted by the permit." extant zoning." p.1260. Orrell v. City of Hot NO, but not 4 areas in Hot Springs Court noted that it was • Springs, 844 S.W.2d 310 decided on issue remained for adult unsure if those areas would (Ark. 1992). of whether there businesses. be truly available and were an adequate,but case was adequate decided on other grounds. number of relocation sites. Centaur,Inc. v. Richland 1,000 feet Yes At least 16 alternative Issue was dismissed. County, 392 S.E.2d 165 2 year sites existed. No (S.C. 1990). amortization discussion of percent • of total land. • • Cases Which Supply No Statistics: CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/ TEST UPHELD? i. i Young v. American Mini 500/ 1,000 feet Yes Theatres, 427 U.S. 50 between one (1976). adult theatre and any two regulated uses. Schad v. Borough of excluded all live No Mount Ephraim,452 U.S. entertainment of 61 (1981). any kind MD II Entertainment v. City of Dallas,28 F.3d 492 (5th Cir. 1994) ILO Investments. Inc.v. 750 feet Yes City population: Alternative sites was not at City of Rochester, 25 F.3d 75,000 issue, instead issue was over 1413 (8th Cir. 1994). whether the statute was unconstitutionally overbroad and not content neutral. City of Vallejo v. Adult Yes reasonable number of sites Books, 167 Cal. App. 3d existed. . 1169, 213 Cal. Rptr. 143 .. i (1985), cert. denied,475 U.S. 1064(1986). • Tollis. Inc. v.San 1,000 feet NO Not sufficiently narrow. Bernardino County, 827 Included all theatres which F.2d 1329 (9th Cir. 1987). showed an adult movie even once. Family of St. Paul,Inc. v. 1,320 feet Yes City of St. Paul,Minn.,923 between such F.2d 91 (8th Cir. 1991). facilities. Zoning ordinance regulated the location of residential facilities for the mentally retarded or mentally ill. • • Pre-Renton Cases • CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/TEST UPHELD? I Basiardanes v.City of 500 or 1,000 Pre-Renton 1,000 foot requirement Ordinance virtually banned Galveston, 682 F.2d 1203 feet NO between businesses adult uses. (5th Cir. 1982). banned from 80 to 90 percent of allowed zones. ') Purple Onion. Inc. v 500 or 1,000 Pre-Renton Only 10 out of 81 Jackson, 511 F. Supp.. feet NO possible sites were • 1207 (N.D. Ga. 1981). acceptable and would be further limited by foot requirement between businesses. North St. Book Shoppe v. Pre-Renton Adult businesses only Village of Endicott,582 F. NO allowed to locate in Supp.. 1428 (N.D. N.Y. two industrially zoned 1984). areas. CLR Corp. v. Henline, 702 Pre-Renton 1/2 mile strip of land F.2d 637 (6th Cir. 1983). was available. • Bayside Enterprises v. 2,500 feet from NO no data given The zoning ordinance Carson,450 F. Supp. 696 a school,church completely band the (M.D. Fla. 1978) or other adult establishment of new adult use,and 500 businesses. • feet from any residential area. • • 13