HomeMy WebLinkAbout01 SEXUALLY ORIEN CODE 10-02-00 NO. 01
AGENDA RE,' 3RT ,o.o .oo
TO:
FROM:
SUBJECT:
WILLIAM HUSTON, CITY MANAGER
COMMUNITY DEVELOPMENT DEPARTMENT
AMENDMENT TO THE SEXUALLY ORIENTED BUSINESSES CODE
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SUMMARY: The City Council adopted Ordinance No. 1204 in 1998 to regulate sexually oriented
businesses. Since then, the Federal Court has made several revisions to the law regulating expressive
conducts that are protected by the First Amendment to the United States Constitution. These revisions
affect the City's process in investigating, issuing and revoking sexually oriented business permits. As
such, a code amendment is being proposed to comply with recent Court decisions.
RECOMMENDATION
That the City Council have first reading by title only to introduce Ordinance No. 1231
related to the investigation, issuance, and appeal of permits for Sexually Oriented
Businesses and adopt Ordinance No. 1231 at the next regularly scheduled Council
meeting.
FISCAL IMPACT
Annual application/permit fees for sexually oriented businesses would be recovered
through application fees identified in Section 3919 of the Tustin City Code. Costs
associated with the transcribing, copying, or preparing administrative records required
for court hearing would be compensated by the applicant.
BACKGROUND
On October 5, 1998 the City Council adopted Ordinance No. 1204 establishing a
comprehensive ordinance to: 1) disperse and limit sexually oriented businesses to
specified zoning districts; 2) license and regulate sexually oriented businesses and
employees; 3) provide additional health and safety regulations for sexually oriented
businesses; and 4) repeal existing sections that were inconsistent with the ordinance.
Since then, the Federal Court has made several revisions to the law regulating
expressive conducts that are protected by the First Amendment to the United States
Constitution. These revisions effect the City's process .in investigating, issuing and
revoking sexually oriented business permits.
Additionally, the Federal Ninth Circuit Court of Appeals issued a decision on 4805
Convoy, Inc. v. City of San Diego impacting the City's decision to suspend or revoke a
license to operate a sexually oriented business. The 4805 Convoy, Inc. v. the City of
San Diego involved a litigation with a nude dancing establishment in which the City of
San. Diego suspended the establishment's license for violating City's regulations: The
City of San Diego ordinance provided for an automatic stay of enforcement during the
City Council Report
SOB Code Amendment
October 2, 2000
Page 2 of 4
administrative appeal process; however, there was not a definitive time period from
when the business owner filed a complaint with the Court t° a final Court adjudication.
As a result, the Ninth Circuit Court issued a decision following the conclusion of a prior
case, Baby Tam & Company, Inc. v. City of Las Vegas, that there must not only be a
stay of enforcement to cease operation of establishment during the administrative
appeal process, but also from the time the aggrieved party seeks Judicial Review
through a final decision of the Court.
This decision creates a problem for local agencies since cities do not have control over
when a Court will 'render a decision, even when cases are entitled to priority under State
or Federal rules. However, on June 28, 1999 the Senate and the Assembly passed
Senate Bill 1165 which added a new Code of Civil Procedure under Section 1094.8.
This new law provides an expedited review and decision process on any denial,
suspension or revocation of a permit involving expressive activity protected by the First
Amendment.
The Planning Commission on September 11, 2000 considered the proposed code
amendment, and adopted Resolution No. 3745 recommending that the City Council
adopt Ordinance No. 1231 to amend Tustin City Code Article 3 Chapter 9 related to
Sexually Oriented Businesses as follows:
Sections 3917, 3918 and 3924 of the Tustin City Code would be amended to read as
follow:
"3917 INVESTIGATION OF PERMIT APPLICATION.
(a)
Upon receipt of a complete application for a sexually oriented
business permit and payment of the non-refundable application fee,
the Community Development Director shall stamp the application as
received and shall thereafter transmit the application to the Tustin
Police Department and any other agencies responsible for
enforcement of zoning, health, fire, and building codes and laws.
Each department or agency shall conduct an investigation of the
applicant, application, and the proposed sexually oriented business in
accordance with its responsibilities under law and as set forth in this
Chapter. All investigations shall be completed within thirty (30) days
of receipt of the application by the Community Development Director.
(b)
Within ten (10) business days of receipt of the completed application,
the Community Development Director shall issue a temporary thirty
(30) days permit."
Subsection (a) of Section 3918 of the Tustin City Code would be amended to read as
follows:
"(a)
The Community Development Director shall grant, grant upon
condition, or deny an application for a permit within thirty (30) days
from the date the application is-deemed complete. The applicant
shall be notified by the Community Development Director of such
City Council Report
SOB Code Amendment
October 2, 2000
Page 3 of 4
grant, conditional grant or denial of the application and shall state the
reasons for a denial. A permit may be conditionally granted only
when the City has not timely received fingerprint information to verify
that the applicant has not been convicted of specified criminal acts
within the timeframes described in subsection (c)(1)(i). Such
conditional grant shall not constitute a vested right to operate under
this permit.
If the Community Development Director neither grants nor denies the
application within thirty (30) days after the complete application is
stamped received (except as provided in Section 3916 (h)), the
application shall be deemed to be approved as of the thirty-first (31st)
day and the applicant may begin operating the sexually oriented
business for which the permit was sought, subject to compliance with
the development and performance standards and requirements of
Section 3912 of this Code."
Subsection (a) of Section 3924 of the Tustin City Code would be amended to read as
follows:
"(a)
After denial of an application, or denial of a renewal of an application,
or upon the issuance of a notice of suspension or a notice of
revocation of a permit by the Community Development Director, the
applicant or permittee may seek review of such action by filing a
written appeal with the City Council. An appeal must be filed with the
City Clerk within ten (10) calendar days of a denial, suspension, or
revocation of a permit. The hearing before the City Council will be
held no less than five (5) business days from the date of the filing of
the appeal or at the next regularly scheduled meeting of the City
Council. The City Council shall issue its decision within fifteen (15)
calendar days of the hearing. The decision of the City Council shall
be final. If the denial, suspension or revocation is affirmed on review
by the City Council, the applicant or permittee may seek expedited
judicial review of such administrative action pursuant to California
Code of Civil Procedure Section 1094.8 because the permit regulates
expressive conduct protected by the First Amendment to the United
States Constitution. The applicant or permittee shall be responsible
for reimbursing the City for its actual costs for transcribing, copying,
or otherwise preparing the administrative record required for court
hearing."
Subsection (b) of Section 3924 of the Tustin City Code would be amended to read as
follows:
"(b)
There shall be an automatic stay of enforcement of a permit denial,
suspension, or revocation throughout the administrative and/or
judicial appeal process."
With the adoption of this code amendment, the City would have a Sexually Oriented
Businesses Ordinance that complies with the-recent court decision and the California
Code of Civil Procedure.
City Council Report
SOB Code Amendment
October 2, 2000
Page 4 of 4
ENVIRONMENTAL REVIEW
Per Section 15060.c.3 of the California Environmental Quality Act (CEQA) Guidelines,
the proposed amendment is not considered as a "project" since it contains only
technical amendment to an existing code sections and will not have an impact in the
environment. As such, no CEQA review is required. '~
Ju~ina Willkom
Associate Planner
Elizabeth A. Binsack
Director of Community Development
Attachments: Ordinance No. 1231
Planning Commission Resolution No. 3745
\\COMM_DEV~VOLI\SHARED\CDD-RDA\CDD\CCREPORT~SOB Code Amendment.doc
Ordinance No. 1231
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ORDINANCE NO. 1231
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, AMENDING 'SECTION 3917,
SUBSECTION (A) OF SECTION 3918, AND SUBSECTIONS
(A) AND (B) OF SECTION 3924, OF THE TUSTIN CITY CODE,
RELATING TO THE INVESTIGATION, ISSUANCE, AND
APPEAL OF PERMITS FOR THE ESTABLISHMENT OF
SEXUALLY ORIENTED BUSINESSES.
The City Council of the City of Tustin hereby ordains as follows:
SECTION 1. Section 3917 of the Tustin City Code is amended to read'
"3917 INVESTIGATION OF PERMIT APPLICATION.
(a)
Upon receipt of a complete application for a sexually oriented
business permit and payment of the non-refundable application
fee, the Community Development Director shall stamp the
application as received and shall thereafter transmit the
application to the Tustin Police Department and any other
agencies responsible for enforcement of zoning, health, fire, and
building codes and laws. Each department or agency shall
conduct an investigation of the applicant, application, and the
proposed sexually oriented business in accordance with its.
responsibilities under law and as set forth in this Chapter. All
investigations shall be completed within thirty (30) days of receipt
of a complete application by the Community Development
Director.
(b)
Within ten (10) business days of receipt of the completed
application, the Community Development Director shall issue a
temporary thirty (30) days permit."
SECTION2. Subsection (a) of Section 3918 of the Tustin City Code is
amended to read as follows:
"(a) The Community Development Director shall grant, grant upon
condition, or deny an application for a permit within thirty (30)
days from the date the application is deemed complete. The
applicant shall be notified by the Community Development
Director of such grant, conditional grant or denial of the
application and shall state the reasons for a denial. A permit may
be conditionally granted only when the City has not timely
received fingerprint information to verify that the applicant has not
been convicted of specified criminal acts within the timeframes
described in subsection (c)(1)(i). Such conditional grant shall not
constitute a vested right to operate under this permit.
If the Community Development Director neither grants nor denies
the application within thirty (30) days after the complete
application is stamped received (except as provided in Section
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Ordinance No. 1231
Page 2
3916 (h)), the application shall be deemed to be approved as of
the thirty-first (31~') day'and the applicant may begin operating the
sexually oriented business for which the permit was sought,
subject to compliance with the development and performance
standards and requirements of Sectioh 3912 of this Code."
SECTION 3. Subsection (a) of Section 3924 of the Tustin City Code is
amended to read as follows'
"(a)
After denial of an application, or denial of a renewal of an
application, or upon the issuance of a notice of suspension or a
notice of revocation of a permit by the Community Development
Director, the applicant or permittee may seek review of such
action by filing a written appeal with the City Council. An appeal
must be filed with the City Clerk within ten (10) calendar days of a
denial, suspension, or revocation of a permit. The hearing before
the City Council will be held no less than five (5) business days
from the date of the filing of the appeal or at the next regularly
scheduled meeting of the City Council. The City Council shall
issue its decision within fifteen (15) calendar days of the hearing.
The decison of the City Council shall be final.. If the denial,
suspension or revocation is affirmed on review by the City
Council, the applicant or permittee may seek expedited judicial
review of such administrative action pursuant to California Code
of Civil Procedure Section 1094.8 because the permit regulates
expressive conduct protected by the First .Amendment to the
United States Constitution. The applicant or permittee shall be
responsible for reimbursing the City for its actual costs for
transcribing, copying, or otherwise preparing the administrative
record required for court hearing."
SECTION4. Subsection (b) of Section 3924 of the Tustin City Code is
amended to read as follows:
"(b)
There shall be an automatic stay of enforcement of a permit
denial, suspension, or revocation throughout the administrative
and/or judicial appeal process."
SECTION 5. This ordinance shall become effective at 12:00 a.m. on the 31st
day after adoption.
SECTION 6. If any section, subsection, sentence, clause, phrase or portion of
this ordinance is for any reason held to be invalid or unconstitutional by the
decision of any court of competent jurisdiction, such decision shall not affect the
validity of the remaining portions of this ordinance. The City Council of the City
of Tustin hereby declares that it would have adopted this ordinance and each
section, subsection, sentence, clause, phrase or portion thereof irrespective of
the fact that any one or more sections, subsections, sentences, clauses,
phrases, or portions be declared invalid or unconstitutional.
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Ordinance No. 1231
Page 3
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of
Tustin on this 2nd day of October, 2000.
JEFFERY M. THOMAS, MAYOR
PAMELA STOKER, City Clerk
-3-
Planning Commission
Resolution No. 3745
RESOLUTION NO. 3745
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A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF TUSTIN, CALIFORNIA,. RECOMMENDING THAT
THE CITY COUNCIL ADOPT ORDINANCE NO~ 1231, AN
AMENDMENT'TO TUSTIN CITY CODE RELATING TO THE
INVESTIGATION, ISSUANCE, AND APPEAL OF PERMITS
FOR SEXUALLY ORIENTED BUSINESSES.
The Planning Commission of the City of Tustin finds:
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· That an amendment to Tustin City Code relating to the investigation,
issuance, and appeal of permits to the Resolution for sexually oriented
businesses has been prepared and is'attached to the Resolution.
That a public hearing was duly noticed, called and held on said ordinance on
September 11, 2000 by the Planning Commission.
Co
Per Section 15060.c.3 of the California Environmental Quality Act (CEQA)
Guidelines, the proposed amendment is not considered a "project", as such
no CEQA review is required.
D.
That the proposed amendment is regulatory in nature to comply with the
Ninth Circuit decision and to incorporate the revised Code of Civil Procedure
Section 1094.8 setting forth the expedited judicial review process.
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That the proposed ordinance is consistent with the General Plan, particularly
the Land Use Element by ensuring consistency between the General Plan
and the Zoning Code.
The Planning Commission hereby resolves and recommends that the City Council adopt
Ordinance No. 1231, as attached to this Resolution, amending provisions of the Tustin City
Code relating to the investigation, issuance, and appeal of permits for sexually oriented
businesses.
PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular
meeting held on the 11th day of September 2000.
ELIZABETH A. BIN~ACK
Planning Commission Secretary
~'"¢i~15~,~4 V. KOZAK
Chairperson
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Resolution No. 3745
Page 2 of 2
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
·
I, ELIZABETH A. BINSACK, the undersigned, hereby certify ~hat I am the Planning
i Commission Secretary of the Planning Commission of the City of Tustin, California; that
Resolution No. 3745 was 'duly passed and adopted at regular meeting of the Tustin
Planning Commission, held on the 11,t~ day of September, 2000.
-~LI~ABE'i"H A. BINSACK
Planning Commission Secretary
¥~COMM_DEV~VOL1~SHARE[:ACDD-RDA~CDI::N::~RESOS~745.doc