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HomeMy WebLinkAbout01 CODE AMEND 98-03 09-21-98DATE: SEPTEMBER 21, 1998 'NO. 1 9-21-98 Inter-Com( TO: FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR CODE AMENDMENT 98-03 (ORDINANCE NO. 1204) - CONSIDERATION OF THE CITY OF 'TUSTIN COMPREHENSIVE SEXUALLY ORIENTED BUSINESS ORDINANCE Summary: C6de ~Arnendment 98-03 (Ordinance No. 1204) would establish a comprehensive .ordinance related to sexually oriented businesses .in the City of Tustin. ff adopted, l 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, repeal the applicable Tustin City Code sections. 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. On August 24, 1998, the .Planning Commission recommended that the City Council adopt Code Amendment 98-03 (Ordinance No. 1204). Area of AppliCability: Citywide Recommendation: That the City Council: , Adopt Resolution No. 98-86 approving the environmental determination for the project; and . Introduce and have firSt reading of Ordinance No. 1204 (Code Amendment 98- 003) and set for second reading at the October 5, 1998 City Council meeting. Fiscal Impact: There are no direct fiscal impacts associated with the Council's adoption of Ordinance No. 1204. 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: On February 17, 1998, the City Council adopted Urgency Ordinance No. 1196 regulating sexually oriented businesses. Due to the immediate need to adopt an interim ordinance, time did not allow for the required noticing and public hearing procedures; therefore, Ordinance No. 1196 could only be effective for 45 days. On March 2, 1998 the Council adopted Ordinance No. 1198 and the required noticing and public hearing procedures were followed; therefore, the interim .ordinance could be effective for 10 months and 15 days. During the interim effect of Ordinance No. 1198, staff has prepared a permanent ordinance for consideration and hearings before the Planning Commission and Cit~ Council, respectively. On August 24, 1998, the Planning Commission recommended that the City Council adopt Code Amendment 98- .003 (Ordinance No. 1204) (See Attachment D). City Council Report Code Amendment 98-03 Ordinance No. 1204 September 21, 1998 Page 2 Discussion; 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 were permitted in the City's traditional commercial zoning districts surrounded by sensitive uses. Conditional use permits and/or modified conditional use permits were required for sexually oriented businesses to locate in the City, but no standards of operation (i.e. security, lighting, licensing, etc.) were identified. A revision to these sections was being prepared along with a comprehensive zoning code revision. However, facts were presented 'that necessitated a more prompt revision to the sections on sexually oriented businesses (i.e. the Community Development Department had received a number' of inquiries to establish sexually oriented businesses within the City). It is difficult to ascertain whether or not these inquiries were legitimate or opportunities for those so inclined to file lawsuits. Due to the increased interest in locating these uses within the City and the lack of adequate processing or operating standards, staff prepared the urgency ordinances and this permanent ordinance. 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. City Council Report Code Amendment 98-03 Ordinance No. 1204 September 21, 1998 Page 3 Common Issues and Questions Related to Sexually Oriented Businesses 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: Why is the City compelled to adopt a sexually oriented business ordinance? 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? Can the City ban sexually oriented businesses? What constitutes enough sites? 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? Can the City use its power of taxation to penalize these businesses? How will the costs be offset to license and monitor these premises? Why is the City compelled to adopt a sexually oriented business ordinance? The City of Tustin has not comprehensively updated the codes related to these uses 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 C). Prior to adoption of the urgency ordinances, the City used a modified conditional use permit process to control Sexually Oriented Businesses; however, th.e~e' were no operational restrictions in the code (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 Anaheim. 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 Anaheim 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. Are there currently any sexually oriented business applicatiOns pending? The City is not considering any formal applications at this time. The City and adjacent jurisdictions have received several inquiries in this regard. City Council Report Code Amendment 98-03 Ordinance No. 1204 September 21, 1998 Page 4 What are the approaches used 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 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 Re. nton 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 More recently, a number of cities 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. City Council Report Code Amendment 98-03 Ordinance No. 1204 September 21, 1998 Page 5 Y' Can the City ban sexually oriented businesses? No. 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 "content 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." 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 ("sin 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 businesses, 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. How will the cost be offset 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). v' 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 C. 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 Cai Rptr.2d 682, the City Council Report Code Amendment 98-03 Ordinance No. 1204 September 21, 1998 Page 6 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. 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. The City of Tustin's Approach The draft Ordinance No. 1204 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 B). The list below highlights the major' provisions of the ordinance. The ordinance establishes that the purpose and intent of the proposed ordinance is to regulate sexually oriented businesses to reduce and/or eliminate 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 opinions, 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. This distance is. 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 exterior wall of one business to another must be maintained. City Council Report Code Amendment 98-03 Ordinance No. 1204 September 21, 1998 Page 7 · 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 application and annual permit fee deposits that relate to the administrative costs .for the City to implement and enforce this sexually oriented business ordinance. The application fee will offset the costs to conduct the background investigation and issue permits. The annual fee will offset personnel costs for City staff to inspect the premises and enforce the provisions of the ordinance. The City Attorney has reviewed and approved the content and form of the proposed ordinance. Environmental Determination: Pursuant to the Califomia Environmental Quality Act, the Community Development Director has analyzed the project and determined that the project will not have a significant impact on the environment. Based on this finding, the Director has prepared a draft Mitigated Negative Declaration for consideration by the City Council. A copy of the Initial Study documenting the reasons to support the finding is provided in Attachment A. The Proposed Code Amendment 98-03 (Ordinance No. 1204) is a comprehensive sexually oriented business and zoning ordinance establishing criteria for the regulation and consideration of such uses and requiring special licenses for specified activities. Because of the regulatory nature of the proposed amendment, the project will not create significant environmental impacts. When individual projects are proposed that are subject to this ordinance, independent environmental analysis will occur. Elizabeth A. Binsack Community Development Director · Attachments: A. D. Resolution No. 98-86 and Negative Declaration Draft Ordinance No. 1204 Case Studies ' Due to the voluminous nature of these studies, these documents are available for review in the Community Development Department (714-573-3031); however, a summary of leading pre- and post- Renton cases is attached hereto. Planning Commission Resolution Nos. 3611 and 3612 ATTACHMENT A Resolution No. 98-86 Negative Declaration and Initial Study Prepared for Ordinance. No. 1204 - Code Amendment 98-003 l0 13 15 16 18 19 20 2_2 23 ¸25 2'7 28 RESOLUTION NO. 98-86 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, . ADOPTING A NEGATIVE DECLARATION FOR ORDINANCE NO. 1204 (CODE AMENDMENT 98-003) RELATED TO A COMPREHENSIVE SEXUALLY ORIENTED BUSINESS ORDINANCE INCLUDING REQUIRED FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council of the City of Tustin finds and resolves as follows: WHEREAS, a permanent sexually oriented business ordinance is considered "a project" pursuant to the terms of the California Environmental Quality Act (CEQA); and WHEREAS, an environmental checklist and Negative Declaration were prepared for this project and available for public review; and WHEREAS, the Planning Commission of the City of Tustin has conSidered evidence presented by the Community Development Director and other interested parties with respect to the subject Negative Declaration; and, WHEREAS, the Planning Commission did on the 24th day of August, 1998, hold.a duly noticed public hearing as prescribed by law to consider said Negative Declaration and Ordinance; and, The City Council has evaluated the proposed Negative Declaration and determined that the project is regulatory in nature and therefore, would not have a significant effect on the environment. When individual applications are submitted for consideration, independent environmental review will occur. NOW, THEREFORE, BE IT RESOLVED by the City of Tustin City Council, as follows: A) That the above recitations are true and correct. B) That based on the evidence presented at the public hearing, said Council adopts the following findings: 1. The Negative Declaration was submitted to the Orange County Clerk and posted for circulation and review on July 24, 1998. 2. The attached Initial Study and Negative Declaration shows that the project will not have a significant impact on the environment (Attachment A). The proposed project is regulatory in nature. As specific site plans l0 3.1 3.2 13 3.5 l? 3.8 19 20 2'7 28 Resolution No. 98-86 Page 2 , are proposed in accordance with these provisions, independent environmental analysis will be conducted. The proposed project involves no potential for adverse effect, either individually or cumulatively, on wildlife resources. As a result, the project qualifies for the DeMinimis Impact exemption from the Department of Fish and Game environmental review fees. The Director of Community Development shall prepare, execute and file a certificate of fee exemption. PASSED AND ADOPTED at a regular meeting of the Tustin City Council, held on the 21st day of September, 1998. THOMAS R. SALTARELLI Mayor PAMELA STOKER City Clerk NEGATIVE COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (714) 573-3105 DECLARATION Project Title: SEXUALLY ORIENTED BUSINESSES ORDINANCE Projecf Location: ClTYWIDE (ORDINANCE NO 1204) AN ORDINANCE TO DISPERSE AND LIMIT; LICENSE AND REGULATE; AND PROVIDE Project Description: ADDITIONAL HEALTH' AND SAFETY REGI~TIONS FOR SEXUALLY ORIENTED BUSINESSES Project Proponent: CITY OF TUSTIN Lead Agency Contact Person: ELIZABETH A. BINSACK Telephone: (714) 573-3106 The Community Development Department has conducted an Initial Study for the above project in accordance Mth the City ofTustin's procedures regarding implementation of the California Environmental Quality Act, and on the basis of that study hereby finds: That there is no substantial evidence that the project may have a significant effect on the environment. That potential sigrfi'ficant effects were identified, but revisions have been included in the project plans and agreed to by the applicant that would avoid or mitigate the effects to a point where clearly no significant effects would occur. Said Mitigation Measures are included in Attachment A of the Initial Study which is attached hereto and incorporated herein. Therefore, the preparation of an Environmental Impact Report is not required. · The Initial Study which provides the basis for this determination is attached and is on file at the · Community Development Department, City of Tustin. The public is invited to comment on the appropriateness of this Negative Declaration during the review period, which begins with the public notice of Negative Declaration and extends for twenty (20) calendar days. UPon review by the Community' Development Director, this review period may be extended if deemed necessary. e v Ew 4:00 Elizabeth A. Binsack Community Development Director NEGDEC.PM5 3704.A COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (714)573-3105 INITIAL STUDY A. BACKGROUND Project Title: SEXUALLY ORIENTED BUSINESSES ORDINANCE (ORDINANCE NO. 1204) Lead Agency: · City of Tustin 300 Centennial Way Tustin, California 92780 Lead Agency Contact Person: ELIZABETH A. BINSACK Project Location: ClTYWIDE Phone: (714') 573-3106 Project Sponsor's Name and Address: CITY OF TUSTIN 300 CENTENNIAL WAY TUSTIN, CA 92780 General Plan Designation: N/A Zoning Designation: N/A Project Description: AN ORDINANCE TO DISPERSE AND LIMIT; LICENSE AND REGULATE; AND PROVIDE ADDITIONAL HEALTH AND SAFETY REGULATIONS FOR SEXUALLY.ORIENTED BUSINESSES. Surrounding Uses: North N/A East N/A South N / A West N / A Other public agencies whose approval is required: Orange County Fire Authority Orange County Health Care Agency South Coast Air Quality Management District Other City oflrvine City of Santa Ana Orange COunty EMA B, ENVIRONMENTAl' XCTORS POTENTIALLY '"FECTED The environmental faciors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact" as indicated by the checklist in Section D below. Land Use and Planning Population and Housing Geological Problems Water Air Quality Transportation & Circulation Biological Resources Energy and Mineral Resources 12 Hazards 12 'Noise [] Public Services . FI Utilities and Service Systems ' .1~1' Aesthetics 12 'Cultural Resources 12 Recreation 12 Mandatory Findings of Significance' C. FI [3 DETERMINATION: Oh the basis of this initial evaluation: I find that the proposed project COULD NOT have a significant effec[ on the environment, and a NEGATIVE DECLARATION will be prepared. I find that although the proposed project .could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheets have been added to the 'project. A NEGATIVE DECLARATION will be prepared. I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. I find that the proposed project MAY have a significant effect(s) on the environment, but at least one effect 1) has been adequately analyzed .in an earlier document pursuant to applicable legal standards,, and 2) has been addressed by mitigation measures based on. the earlier analysis as described on attached sheets, if the effect is a ~Potentially Significant Impact" or "Potentially Significant Unless Mitigated." An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. I find that although the proposed project could have a significant effect on the environment, 'there WILL NOT be a significant effect in this case because all potentially significant effects 1) have been analyzed adequately in an earlier EIR pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier EItL including revisions or mitigation measures that are imposed upon the proposed project. I find that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects 1) have been analyzed adequately in an earlier NEGATIVE DECLARATION pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier'NEGATIvE DECLARATION, including revisions or mitigation measures that are'imposed upon the proposed project. PfintNarne SCOTT REEKSTIN Date ' ASSOCIATE PLANNER D~ ENVIRONMENT, IMPACTS: [3 Earlier analyses used:' .4vailable for review at: City of Tustin Community Development Department 1. LAND USE & PLANNING- }gould the proposal: a) Conflict with general plan designation or zoning? b) Conflict with applicable environmental plans or policies adopted by agencies with jurisdiction over the project? c) Be incompatible with existing land uses in the vicinity? d) Affect agricultural resources or operations? e) Disrupt or divide the physical arrangement of an established community (including a low-income or minority community)? 2. POPULATION & HOUSING - Would the proposal: . a) . Cumulatively exceed official regional or local population projections? b) Induce substantial grov, xh in an area either directly or indirectly (e.g., through projects in an undeveloped area or emension of major infrastructure)? c) Displace existing housing, especially affordable housing? GEOLOGIC PROBLEMS - }gould the proposal result in or expose people to potential impacts involving: a) Fault rupture? b) Seismic ground shaking? c) Seismic ground failure, incl.uding liquefaction? d) Seiche, tsunami, or volcanic hazard? e) Landslides or mudflows? f) Erosion, changes in topography or unstable soil conditions from excavation, grading, or fill? g). Subsidence ofland? h) Expansive soils? i). Unique geologic or physical features? 4. WATER - Would the proposal result in: a) Changes in absorption rates, drainage pauerns, or the rate and amount of surface runoff?. b) Exposure of people or property to water related hazards such as flooding? c) Discharge into surface waters or other alteration of surface water quality (e.g., temperature, dissolved o~gen or turbidity)7 d) Changes in the amount of surface water in any water body? e) Changes in currents, or the course or direction of water movements? Potentially Significant Impact Potentially Significant Unless Mitigation Incorporated Less than Significant Impact No Impact 0 0 0 0 0 0 0 0 O' f) Change in the quantity of ground waters, eiflaer through direct additions or ;vithdrawals, or through interception . of an aquifer by cuts or excavations or through substantial loss of groundwater recharge capability? g) Altered direction or rate of flow of groundwater? h) Impacts to groundwater quality? i) Substantial reduction in the amount of groundwater othenvise available for public water supplies? 5. AIR QUALITY - Would the proposal: e '° a) Violate any air quality standard or contribute to an e.'dsfing or projected air quality violation? b) Expose sensitive receptors to pollutants? c) Alter air movement, moisture, or temperature, or cause any change in climate? d) Create. objectionable odors? TRANSPORTATION & CIRCULATION - II, buld the proposal result in: a) Increased vehicle trips or traffic congestion? b) Ha?ards to safety from design features (e.g., iharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? c) Inadequate emergency access or access to nearby uses? d) Inmfficient parking capacity onsite or offsite? e) I-laTards or barriers for pedestrians or bic3'clists? f) Conflicts with adopted policies supporting alternative transportation (e.g. bus turnouts, bicycle racks)? g)- Rail, waterborne or air traffic impacts? BIOLOGICAL RESOURCES - Would the proposal result in impacts to: a) Endangered, threatened or rare species or their habitats (including but not limited to.plants, fish, insects, animals, and birds? b) Locally designated species (e.g., heritage trees)? c) Locally designated .natural communities (e.g., oak forest, coastal habitat, etc.)? d) Wetland habitat (e.g., marsh, riparian, and vernal pool)? e) Wildlife dispersal or migration corridors? ENERGY & MINERAL RESOURCES - Would the proposal: a) Conflict with adopted energy conservation plans? b) Use nonrenewable resources in a wasteful and inefficient manner? c) Result in the los-q of availability of a known mineral resource that would be of future value to the region? :?,x. potentiatly Potentl Unless SignificantMitigation Impact Incorporated Less than Significant 'Impact No Impact 9. IIAZARDS - Would the proposal involve: a) A risk of accidental e.,cplosion or release of hazardous substances (including, but not limited, to, oil, pesticides, chemicals, or radiation)? b) Possible interference with emergency response plan or emergency evacuation plan? c) The creation of any health hazard or potential health hazard? d) Exposure of people to e.,dsting sources of potential health hazards? e) Increased fire hazard in areas with flammable brush, grass, or trees? 10. NOISE - Would the proposal result in: 11. 12. a) Increases in existing noise levels? b) Exposure of people to severe noise levels? PUBLIC SERVICES - IFould the proposal have an effect upon, or result in a need for new or altered government services in a. ny of the following areas: a) Fire protection? b) Police protection? c) Schools? d) Maintenance of public facilities, including roads? e) Other government services? UTILITIES & SERVICE SYSTEMS - I[,buld the proposal result in a need for new systems or supplies, or substantial alterations to the followifig utilities: ' a) Power or natural gas? b) .Communications systems? c) Local or regional water treatment or distribution facilities? d) Sewer or septic tanks? e) Storm water drainage? f) Solid waste disposal? g) Local or regional water supplies? 13. AESTHETICS - Would the proposal: ' a) Affect a scenic vista or scenic highway? b) Have a demonstrable negative aesthetic effect? c) Create light or glare? : '.~¥Potentially · ::.'Significant Pote iy Unless Less than Significant blitigation Significant Impact Incorporated Impact No Impact 0 0 14. CULTURAL RESOURCES - Would the proposal: a) Disturb paleontological resources? b) Disturb archaeological resources? c) Have the potential to cause a physical change which would affect unique ethnic cultural values? d) Restrict existing religious or sacred uses ;vithin the 'potential impact area? 15. RECREATION - Would the proposal: a) 'Increase thc demand for neighborhood or regional parks or other recreational facilities? b) Affect existing recreational opportunities? 16. MANDATORY FINDE~IGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality. of the environment, substantially reduce the habitat of a fish or '.vildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community., reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have the potential to achieve short-term, ' to the disadvantage of long-term, environmental goals7 c) Does the project have impacts that are individually limited, but cumulatively considerable? (''Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects). d)' Does the project have environmental effects which ',vill cause substantial adverse effects on human beings, either directly or indirectly? · ~..xotentiall. v Potenti~ Unless Significan,Mitigation Impact Incorporated Less than Significant Itnpact NoImpact 0 0 0 0 O O O ~ 0 0 O ~ O O O' ~ E. EVALUATION OF ENVIRONMENTAL IMPACTS Please refer to Attachment A for an evaluation of the environmental impacts identified in Section D above. INITSTUD. PM5 3702A ATTACHMENT A EVALUATION OF ENVIRONMENTAL IMPACTS SEXUALLY ORIENTED BUSINESS ORDINANCE ORDINANCE NO . 1204 CODE AMENDMENT 98 - 003 BACKGROUND AND ENVIRONM]ENTAL EVALUATION The proposal is a code amendment to disperse and limit sexually oriented businesses to specified zoning districts; license and regulate sexually oriented businesses and employees; and provide additional health and safety regulations for sexually oriented businesses. Similar regulations were established in Urgency Ordinance No. 1198, which will expire on January 17, 1999. The 'Ordinance protects the 'immediate- health, safety and welfare of City of Tustin residents and businesses from' the negative secondary effects of sexually oriented businesses. Individual requests for sexually oriented business uses may have negative impacts on the surrounding environments; however, this ordinance would assist in preventing and/or reducing secondary effects that these uses may have. on adjacent uses, neighborhoods and communities, while preserving constitutional rights. Without these regulations, sexually oriented businesses may be established in the City of Tustin without being required to adhere to the reasonable operational standards contained in Ordinance No. 1204. Because of the regulatory nature of the proposed ordinance, the project will not create significant environmental impacts. When individual projects are proposed that are regulated by the proposed ordinance, independent environmental.analyses will occur at the time of project submittal. .o ENVIRONMENTAL SETTING The proposal is a code amendment that may'have impacts citywide, but is not location-specific. Environmental concerns'specific to the project are primarily focused on potential land use & planning, transportation & circulation, public services, and aesthetics.impacts related to the implementation of the proposed code amendment. A detailed analysis of these and other. environmental issues .is addressed in the following discussion, which is provided to substantiate the responses to the checklist questions presented in Section D of this Initial Study. i . LAND USE & PLANNING Items a, b, d and e - "No Impact"' The proposed code amendment does not conflict with the Tustin General Plan, Tustin Zoning Code, or environmental plans. The proposal Attachment A - Evaluation of Environmental Impacts Sexually Oriented Business Ordinance Page 2 will not affect agriculture or divide an established community. Item c .- "Potentially Siqnificant Unless Mitiqation Incorporated": The proposal establishes land use, licensing, and health and safety regulations for sexually oriented businesses. Due to negative secondary impacts, these businesses may be considered incompatible with some existing land uses in the vicinities of their potential locations. SoUrces: Project Description Tustin Community Development Department City of Tustin General Plan City of Tustin Zoning Code Studies on sexually oriented businesses: 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) Whittier, California (1978) Mitigation/Monitoring Required: To improve compatibility with adjacent land uses, the following mitigation measures are included in' the proposed ordinance: The establishment of a sexually oriented business shall be permitted only in the specified PCMU, PC-C, PCC, M, and PC-IND zoning districts, and shall be subject to · the following restrictions. No person shall cause or permit the establishment of a sexually oriented business, as defined in this ordinance, within 500 feet of any religious institution, school, boys' club, girls' club or similar existing youth.organization, or public park or public building or within 500 feet of any residential district or use, or within 500 feet of an existing sexually oriented business. Attachment A - Evaluation of Environmental Impacts Sexually Oriented Business Ordinance Page 3 A person is guilty of a misdemeanor if he/she causes or permits the operation, establishment or maintenance of more than one sexually oriented business within the same building, structure or portion thereof, or causes the substantial enlargement of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business. The interior premises of a sexually oriented business shall not be visible from outside the premises . It shall be unlawful and a person is guilty of a misdemeanor if he/she operates or causes tO be operated a sexually oriented business, and allows such business to remain open for business or. to permit any service provider in the business 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 12:00 a.m. and 9:00 a.m. of any particular day. No person shall establish a sexually oriented business without a valid sexually oriented business permit issued by the City. . POPULATION & HOUSING Items a throuqh c - "No 'Impact": The proposal will not affect existing housing or create a demand for additional housing, as no dwelling units are 'proposed. The proposed project would establish regulations for sexually oriented businesses that serve the existing local and sub-regional population. Sources: Project description Tustin Community Development Department Mitiqation/Monitorinq Required: None Required. . GEOLOGICAL PROBLEMS Items a throuqh i - "No Impact"- No unstable conditions, significant changes in topography or exposure to geological hazards will result from the subject proposal. The proposed code amendment is fora change of land use, licensing, and Attachment A - Evaluation of EnvirOnmental Impacts Sexually Oriented Business Ordinance Page 4 heaIth and safety regulations only; no development is associated with the proposal. Any potential impacts related to minor grading activity or excavation for the construction of improvements required for individual sexually oriented businesses would be addressed under separate CEQA review. Sources: Project description Tustin Community Development Department. Mitiqation/Monitorinq Recn~ired: None Required. WATER Items a throuqh i - "No Impact": The proposed code amendment would not result in any changes to any existing water conditions. Specific proposals for sexually oriented businesses will be evaluated on a case by case basis for water related impacts. Sources: Project Description Mitiaation/Monitorinq Required: None Required. AIR QUALITY Items a through d - "No Impact": Based on a review of The South Coast Air Quality Management District's (SCAQMD) CEQA Air Quality Hanclbook, this project will not result in any degradation to the existing air quality. Any possibility of dust generated by future construction activity' will be evaluated and, if necessary, mitigated during the review of that specific development proposal. Sources: Project Description Tustin Community DevelOpment Department South Coast Air Quality Management District. 1993. CEQA Air Quality Handbook. Mitiqation/Monitorinq Required: None Required. · TRANSPORTATION & CIRCULATION Items a throuqh c and e through g - "No ImDact": The proposed code amendment will not alter existing circulation Attachment A - Ewaluation of Environmental Impacts Sexually Oriented Business Ordinance Page 5 patterns. The project will have no effect on existing access or circulation, routes, emergency or pedestrian access, or other modes of transportation. The establishment of sexually oriented businesses .may generate traffic near individual sites which would be evaluated on a case by case basis. Item d - "Potentially Siqnificant Unless Mitiaation Incorporated": The establishment of'each business may result in insufficient parking capacity onsite or offsite. Sources: Project Description City of Tustin General Plan City of Tustin Public Works Department City of Tustin Zoning Code Mitiaation/Monitorinq Recruired: Sexually oriented businesses shall comply with the parking requirements set forth in the proposed ordinance, the Zoning code and the City of Tustin Parking Design Standards and Landscape and Irrigation Guidelines. The number of parking spaces provided shall be the equivalent of that required for new construction, regardless of the status of the legal nonconforming parking rights of the previous use. . BIOLOGICAL RESOURCES Items a through e - "No Impact": The proposal will not result in any'impacts to.biological resources. However, each future sexually oriented~ business constructed according to the proposed regulations will be evaluated on an individual basis. SourCes: Tustin Community Development Department City of Tustin General Plan Mitiqation/Monitoring ReqUired: None Required. o ENERGY & MINERAL RESOURCES Items a throuqh - "No Impact": The proposed change in land use regulations will.not impact energy and mineral resources. Each future sexually oriented business will be evaluated for such potential impacts on an individual basis. Any future' construction would, need to ¢0mply with the Energy Attachment A - Evaluation of Environmental Impacts Sexually oriented Business Ordinance Page 6 Conservation Standards set forth, in Title 24 of the California Administrative Code. Sources:- Tustin Community Development Department Project Description Mitiqation/Monitorinq Required: None Required. 9. HAZARDS Items a throuqh e - "No Impact": There is no risk of explosion, interference with emergency response plans, creation or exposure of people' to health hazards, or increased fire hazard associated with the project. Sources: Project Description City of Tustin Building Division Orange County Fire Authority Mitiaation/Monitorinq Required: None Required. 10. NOISE Items a and b - "No Impact"- The proposed code amendment will not result in any increases in noise levels or exposure of.people to severe noise levels. However, the establishment of sexually oriented businesses could result in increased noise levels and/or create short-term construction noise impacts. Any such construction would be required to satisfy the City's noise ordinance. Each future sexually oriented business will be evaluated on an individual basis to determine the potential to create'noise impacts. ' ..Sources: Project Description Tustin Community Development Department City of Tustin General Plan Tustin City Code Article 4, Chapter 6 Mitiqation/Monitorinq Required: None Required. 11'. PUBLIC SERVICES Items a and c throuqh e - "No Impact": The proposal will not have an effect upon, or result in a need for, new or altered Attachment A - Evaluation of Environmental Impacts Sexually Oriented Business Ordinance Page 7 government services with the exception of police protection and administrative/code enforcement services. Item b - ~Potentiall¥ Siqnificant Unless Mitiaation Incorporated": Each future sexually oriented business may have an effect upon, or result in a need for new or altered police protection and administrative/code enforcement services. Costs for these services will be off-set through .permit fees and business license taxes. Sources: Various City Departments Project description Mitiqation/Monitorinq Required: The annual application/Permit fee deposit for a sexually oriented business permit is one thousand dollars ($1,000.00), respectively. If the City's actual costs are less than $1,000.00 to review, investigate, or conduct an annual inspection, respectively, for a sexually oriented business, the applicant shall be refunded the balance. If the City's review, investigation, and annual inspections, respectively, exceeds $1,000.00, the applicant shall pay the increase prior to the issuance of a permit to operate. .Each individual who provides services of any kind whether or not an employee, independent contractor, or sole proprietor in a sexually oriented business, except for the permitee(s) holding a permit under Section !0 of this ordinance, shall be required to obtain a Sexually Oriented Service Providers License. Each applicant shall pay a permit fee of forty dollars ($40.00). Said fee is to cover reasonable investigative administrative costs of th~ licensing application process. The renewal of the license shall be subject to payment of a fee in the .amount of $40.00. Each sexually oriented business shall provide a security system that visually records and monitors all parking lot areas serving the use. All indoor areas of the business shall be open to public view at. all times with exception of restroom facilities. · "Accessible to the public" shall include those areas which are only accessible to members of the public who pay a fee and/or join a private club or organization. Further, the sexually oriented business ~hall provide security guards, who are state licensed, armed, uniformed and Attachment A - Evaluation of Environmental Impacts Sexually Oriented Business Ordinance Page 8 approved by the City of Tustin Police Department, during all hours of oPeration. The number of such 'guards so required shall be determined by the Chief of Police, and such number may be increased, at the Chief's discretion, if such increase is necessary to protect the public peace and the~ surrounding neighborhood. Ail off-street parking areas and premise entries of a sexually oriented business shall be illuminated from dusk to closing hours of operation with a lighting system Which provides an average maintained horizontal illumination of one (1.0) foot-candle of light on the parking surface and/or walkways. This required lighting level is established to provide sufficient illumination of the parking areas and walkways serving the sexually oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism ' and criminal conduct. A lighting plan shall be submitted to the Community Development Director or designee. 12. UTILITIES.& SERVICE SYSTEMS Items a-a - "No ImDact": The proposal will not require the expansion of existing facilities or require the construction of new facilities, such as natural gas, electric, water, sewer, storm drainage, solid waste disposal or communications. The proposed code amendment will only provide regulations for sexually oriented businesses. Sources: Project Description Tustin Community Development Department Mitiqation/Monitorinq Required: None required. 13. AESTHETICS Items a .through c - "Potentially' Significant Unless Mitiqation IncorDorated,,: The proposed code amendment will not affect a scenic vista or.scenic highway, create light or glare, or negatively affect aesthetics. However, the implementation of the regulations may have an indirect effect on aesthetics. Every new sexually oriented business in a newly constructed building will be subject~ to the City's Attachment A - E~aluation of Environmental Impacts Sexually Oriented Business Ordinance Page 9 design review process. Through this process, it 'is required that the facilities be compatible with surrounding properties to the greatest extent feasible. Sources: Project Description Tustin Community Development Department Mitiqation/Monitorinq Required: It shall be unlawful and a Person shall be guilty of a misdemeanor if he/she operates or causes to be operated a sexually oriented business, and displays or otherWise exhibits the materials and/or performances at such sexually oriented business in any advertising which is visible outside the premises. This prohibition shall not extend to advertising of the existence, name, or location of such sexually oriented business. The interior premises of a sexually oriented business shall not be visible from outside the premises. No live entertainment permit shall be issued until the establishment is approved as being in full compliance with all requirements of the City' s Zoning Code (includes design review). 14. CULTI/RAL RESOURCES Items a throuqh~d - "No Impact": The proposed code amendment will not affect cultural resources as the permitted locations for sexually oriented businesses are not in close proximity to the City's cultural resources. However,. individual sexually, oriented businesses will be reviewed for their potential impacts on cultural resources. Sources: Tustin Community Development Department Mitiqation/Monitorinq Required: None Required. · · 15. RECREATION ~tems a and b - "No Impact"- The proposed code amendment will not affect parks, recreational facilities, or existing recreational opportunities; it prohibits the establishment of a sexually oriented business within 500 feet of any public Attachment A - Evaluation of Environmental Impacts Sexually Oriented Business Ordinance Page 10 park and would not generate demand for additional park facilities. Sources: Project description Tustin Community Development Department Mitiqation/Monitorinq Required: None Required. 16. MANDATORY FINDINGS OF SIGNIFICANCE Items a throuah d - "No Impact": Based upon the information 'contained in this Initial Study, the project in and of itself will not cause negative impacts to wildlife habitat nor achieve any short-term environmental goals, nor have impacts which are potentially individually limited but are cumulatively considerable and could potentially have an indirect adverse impact on human beings. The project's scope does not have the potential to achieve short-term environmental goals to the disadvantage of long term environmental goals in that the project is a proposal to establish.regulations for sexually oriented businesses. Sources: As stated above Mitiaation/Monitorinq Reauired: As stated above. scr\adult: SOB ordinance initial study.doc ATTACHMENT B Draft Ordinance No. 1204 ORDINANCE NO. 1204 AN ORDINANCE OF THE CITY OF TUSTIN ESTABLISHING A COMPREHENSIVE ORDINANCE TO: DISPERSE AND LIMIT SEXUALLY ORIENTED BUSINESSES TO SPECIFIED ZONING DISTRICTS; LICENSE AND REGULATE SEXUALLY ORIENTED BUSINESSES AND EMPLOYEES; PROVIDE ADDITIONAL HEALTH AND SAFETY REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES; AND, REPEAL SECTIONS INCONSISTENT THEREWITH. The City Council of the City of Tustin does hereby ordain as follows: SECTION 1 FINDINGS The City Council finds as follows: A. That the City Council finds and determines the public health, safety, peace, and welfare necessitates the enactment of this Ordinance for the preservation of the public health, safety, peace, and welfare as follows: The City's regulations governing sexually oriented businesses are being updated as part of the City's comprehensive revision of its zoning code. The update will allow the City to conform its regulations to recent court decisions, including imposing operational standards to reduce adverse secondary effects. The City has received a number of inquiries from representatives of such businesses as to where they might locate in the City. Since such uses usually include First Amendment activities, the City may. not impose a moratorium on such applications as it can with other land use applications while it comPletes its zoning code revision. If this interim ordinance is not adopted, sexually oriented businesses may be established in the City without being required to adhere to strict operational standards the City has under consideration. In addition, because certain aspects of the City's existing regulations may not reflect the latest case law, a court may permit a sexually oriented business to operate in the City without compliance with existing regulations. Accordingly, this ordinance is necessary to protect the health, safety and welfare of City of Tustin's residents and businesses from the negative secondary effects of sexually oriented businesses; and B. That sexually oriented businesses in the City of Tustin require special supervision to protect and preserve the health, safety and welfare of Tustin's citizens, property and business owners and the patrons of such businesses; and C. That 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, D. That from review of other cities' .studies there is convincing documented evidence that sexually oriented businesses, because of their operations, have a deleterious effect on existing businesses and the surrounding residential areas adjacent to sexually oriented businesses, causing increased crime and downgrading of property values; and, E. That it is recognized that sexually oriented business operations have serious objectionable operational characteristics, particularly when they are operating in close proximity to each Ordinance No. 1204 Page 2 other, thereby contributing to crime, lower property values, urban blight and downgrading of the quality of life in adjacent areas; and F. That sexually oriented businesses are frequently used for unlawful sexual activities including prostitution and sexual liaison of a casual nature; and G. That increased crime and unhealthful sexual conduct tend to accompany, concentrate around, and be aggravated by sexually oriented businesses, including, but not limited to prostitution, pandering, exposing minors to harmful matter, possession and distribution of obscene materials and child pornography; and, possession and sale of controlled substances and violent crimes against persons and property; and H. That sexually transmitted diseases, including AIDS, are legitimate health concerns which demand the reasonable regulations of sexually oriented business to protect the health and well being of the citizens; and I. That: (a) areas within close walking distance of single and multiple family dwellings should be free of sexually oriented business uses; Co) areas where children unaccompanied by adults could be expected to walk, patronize, or frequent should be free of sexually oriented business uses; (c) sexually oriented business uses should be located in areas which are not in close proximity to residential uses, churches, parks, or other public facilities and schools; (d) the image of the City of Tustin as a pleasant, attractive place to reside and shop will be adversely affected by the presence of sexually oriented business uses in close proximity to residential land uses, churches, parks and other public facilities, and schools; (e) sexually oriented business land uses should be regulated by zoning to separate those uses from other non- compatible uses as any other land uses are separated from uses with non-compatible characteristics; and J. That zoning, licensing and other police power regulations are legitimate reasonable means of accountability to ensure that operators of sexually oriented businesses comply with reasonable regulations and are located in places which minimize and control the adverse secondary effects which accompany these operations; and K. That it is desirable to minimize and control the adverse secondary effects described in the studies and delineated in findings D-H herein, and thereby protect the health, safety and welfare of the citizens; protect 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 spread of communicable and sexually transmitted diseases; and L. In developing this ordinance, the City Council has been mindful of legal principles relating to regulation of sexually Oriented 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 sexually oriented businesses. The City Council has been mindful of the decisions of the United States Supreme Court regarding local regulations of sexually oriented businesses, including but not limited to: Young v. American Mini-Theaters, Inc., 427 U.S. 50 (1976) rehl denied 429 U.S. 873; Renton v. Pla~ime Theaters, 475 U.S. 41 (1986) reh. denied 475 U.S. 1132; FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); and Barnes v. Glen Theater, 501 U.S. 560 (1991); United States Court 2 Ordinance No. 1204 Page 3 of Appeals, Ninth Circuit decisions, including but not limited to: Topanga Press, Inc., et al. V. Ci_ty of Los Angeles, 939 F. 2d 1525 (1993); and several California cases including, but not limited to: Ci_ty of National Ci_ty v. Wiener, et al., 3 Cal. 4t~ 832 (1993); People v. Superior Court (Lucero), 49 Cal.3d 14 (1989); and Ci _ty.ofVallej0 v. Adult Books, et al., 167 Cal. App.3d 1169 (1985); and other federal cases including: Lakeland Lounge v. Ci_ty of Jacksonville, (5t~ Cir. 1992) 973 F.2d 1255, Hang On, Inc. v. Arlington, (5th Cir. 1995)65 F.3d 1248, Mitchell v. Commission on Adult Entertainment, (3'a Cir. 1993) 10 F.3d 123"; and M. That the foregoing studies substantiate that locational criteria alone will not adequately protect the public health, safety and general welfare and thus certain licensing requirements with respect to the ownership and operation of sexually oriented businesses is in the public interest; and N. That consistent with regulations regarding the sale and consumption of alcohol and outside advertising of such, restricted hours of operation will further prevent the adverse secondary effects of sexually oriented business; and O. That this ordinance is not intended to suppress any speech activities protected by the First Amendment, but is intended to enact a content neutral time, place and manner ordinance which addresses the adverse secondary effects caused by sexually oriented businesses; and P. That in adopting this ordinance, the City Council does not condone or legitimize the distribution of obscene material and recognizes that state law prohibits the distribution of obscene materials; and, Q. That the City Council specifically finds the following: 1. Evidence indicates that some dancers, models and entertainers, and other persons who publicly perform specified sexual activities or publicly displayed specified anatomical parts -in sexuallY oriented businesses (collectively referred to as "Performers") have been found to engage in sexual activities with patrons of sexually oriented businesses on the site of the sexually oriented business; 2. Evidence has demonstrated that performance of employees of sexually oriented businesses 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 of sexually oriented businesses have been found to engage in acts of prostitution with patrons of the establishment; and R. That a number of courts have upheld distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons and direct payment and receipt of gratuities between performers and patrons at sexually oriented business establishments that provide live entertainment: BSA, Inc. v. King County, 804 F.2d 1104, 1110-11 (9t~ Cir. 1986) (six feet); Kev, Inc. v Kitsap County., 793 F.2d 1091 (9t~ Cir. 1986) (ten feet). Staff has also reviewed a Letter by the City of Newport :Beach, California regarding "The Mermaid Application," dated April 12, 1996, containing a notice of revocation and refusal to renew a sexually oriented business permit based on repeated violations of the Newport Beach Municipal Code. The violations include distance limitations and direct payment and receipt of gratuities between performers and patrons during physical Ordinance No. 1204 Page 4 contact including sexual contact, and, an Orange County Superior Court upheld such actions by the City of Newport Beach; and S. That preventing prostitution, drug transactions and the spread of sexually transmitted diseases are legitimate governmental interests. Prohibiting physical contact between performers and patrons at sexually oriented business establishments, prohibiting performers from soliciting payment of gratuities from patrons and the direct payment of gratuities to performers by patrons are' reasonable and effective means of mitigating these adverse negative secondary effects created by sexually oriented businesses; and T. The Planning Commission, in recommending adoption of the Negative Declaration of Environmental Impact under the provisions of the California Environmental Quality Act, specifically fmds that the adoption of this Ordinance will have a diminimis impact on fish and wildlife resources. The Planning Commission specifically finds that in considering the record as a whole, the project- including the adoption of this Ordinance- involves no potential adverse effect, either individually or cumulatively, on wildlife as the same is defined in Section 711.2 of the Fish and Game Code. This is based on the fact that this Ordinance adds additional regulations on the development of sexually oriented businesses designed, to reduce the secondary effects of such businesses on the community and the environment. The project includes the adoption of additional regulations for sexually oriented businesses which should mitigate negative impacts on the environment. Furthermore, the Planning Commission considered the initial study prepared for this ordinance which evaluated the potential for adverse impact on the environment and forms the basis for the Planning Commission's recommendation to the City Council, including the information contained in the public hearing records, on which a Negative Declaration of Environmental Impact was issued and this diminimis finding is made. In addition, the Planning Commission finds that there is no evidence before the City that the proposed project, (i.e., this Ordinance), will have any potential for an adverse effect on wildlife resources, or the habitat on which the wildlife depends; and U. Code Amendment 98-003 is consistent with and implements the policies, goals, and objectives of the Tustin Area General Plan. The regulation of sexually oriented businesses will help preserve the existing land use patterns in the City's sound and stable neighborhoods. Specifically this ordinance furthers the goals and policies established in the Land Use Element Goals 1, 3 and 6. V. That, on February 17, 1998, the City Council adopted Urgency Ordinance No. 1196 regulating sexually oriented businesses. Due to the immediate need to adopt an interim ordinance, time did not allow for the required noticing and public hearing procedures; therefore, Ordinance No. 1196 could only be effective for 45 days. W. That, on March 2, 1998 the Council adopted Ordinance No. 1198 and the required noticing and public hearing procedures were followed; therefore, the interim ordinance could be effective for 10 months and 15 days. X. That, a permanent ordinance has been prepared for consideration and hearings before the Planning Commission and City Council, respectively. Y. Pursuant to the provisions of the California Environmental Quality Act, an environmental checklist and negative declaration were prepared for the amendment and were available for 4 Ordinance No. 1204 Page 5 public review beginning July 24, 1998. The proposed project is regulatory in nature; as such, no significant impacts are anticipated. When specific site development plans are proposed in accordance with these provisions, independent environmental analysis will occur. Z. That the Planning Commission did on the 24th day of August, 1998, hold duly noticed public hearing as prescribed by law to consider said request and recommended that the City Council adopt Ordinance No. 1204; and, AA. That the City Council did on the 21st day of September and the 5t~ day of October, 1998, hold duly noticed public hearings as prescribed by law to consider said request; and, BB.That, at said public hearings, upon hearing and considering all testimony and arguments, if any, of all persons desiring to be heard, said Council considered all factors relating to Code Amendment 98-003 (Ordinance No. 1204). NOW THEREFORE, the City Council of the City of Tustin does ordain as follows: SECTION 2. PURPOSE. The purpose of this Ordinance is: (1) to establish reasonable time, place and manner regulations for sexually oriented businesses within the legal framework of the First Amendment; (2) to protect the health, safety and general welfare of the citizens of the City of Tustin from the deleterious location and concentration of sexually oriented businesses within the City; and, (3) to eliminate the adverse secondary effects caused by sexually oriented businesses. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation, restriction or unconstitutional prior restraint on the content of any communicative materials or activities, related to sexually oriented businesses. SECTION 3. DEFINITIONS. For the purposes of this ordinance, certain terms and words are defined as follows: ^. "Sexually oriented businesses" are those businesses defined as follows: o "Adult arcade" means an establishment where, for any form of consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image producing machines for viewing by five or fewer persons each, are regularly used to show films, .motion pictures video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual .activities or specified anatomical areas. '2. "Adult Bookstore," "Adult Novelty Store," or "Adult Video Store" means a commercial establishment which has as a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or Ordinance No. 1204 Page 6 o . . advertising to the sale, rental for any form of consideration, of any one or more of the following: a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides or other visual representations which are characterized by the depiction or description of "specific sexual activities" or "specified anatomical areas"; bo Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others. C. An establishment may have other principal business purposes that do not involve the offering for sale rental or viewing of materials depicting or describing "specified sexual activities" or "specified anatomical areas", and still be categorized as an adult bookstore, adult novelty store, or adult video store. Such other business purposes will not serve to exempt such establishments fi.om being categorized as an adult bookstore, adult novelty store or adult video store so long as one of the principal business purposes is offering for sale or rental, for some form of consideration, the specified materials which depict or describe "specified anatomical areas" or "specified sexual activities." "Adult cabaret" means a nightclub, bar, restaurant "bottle club", juice bar or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features: (a) persons who appear nude or in a state of nudity or semi-nude; (b) live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities". "AdUlt motel" means a motel, hotel or similar commercial establishment which derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its business and offers the following: (a) public accommodations, for any form of consideration, which provides patrons with closed-circuit television transmission of films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of"specified sexual activities" or "specified anatomical areas" and which advertises the availability of this sexually oriented type of material by means of a sign visible fi.om the public right-of way, or by means of any off-premises advertising including but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television; or, (b) a sleeping room for rent for. a period of time less than ten (10) hours; or, (c) a tenant or occupant to sub-rent the sleeping room for a time period of less than ten (10) hours. "Adult motion picture theater" means a commercial establishment where films, motion pictures, video cassettes, slides or similar photographic 6 Ordinance No. 1204 . Page 7 Bo 'reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas are regularly shown for any form of consideration. 6, "Adult Stripper or Dancer" means a person who, for consideration, agrees or offers to act as a companion, guide or date for another person, or persons and who strips or dances in the nude or semi-nude for such person(s). , "Adult tanning salon or parlor" means a business establishment where: patrons receive tanning services in groups of two (2) or more and where patrons or employees of the establishment expose specified anatomical areas; or, a patron and an employee of the establishment are nude or expose specified anatomical areas; or, the employees thereof are nude or expose specified anatomical areas. . "Adult theater" means a theater, concert hall, auditorium, or similar commercial establishment which, for any form of consideration, regularly features persOns who appear in a state of nudity or live performances which are characterized by exposure of specific anatomical areas or by specified sexual activities. , "Nude Model Studio" means any place where a person, who regularly appears in a state of nudity, semi-nudity or displays specified anatomical areas in exchange for money or any form of consideration and is observed, sketched, drawn, painted, sculptured or photographed by patrons. This includes a business establishment where lingerie which displays specified anatomical areas is modeled. Except, a nude model studio does not include a modeling class ~ts described in Section 4. B. (5). 10. "Sex supermarket/Sex mini:mall" means the establishment or operation of more than one type of sexually oriented business or use as defined in this ordinance within the same building. 11. "Sexual encounter establishment" means a business or commercial establishment, that as one of its primary business purposes, offers for any form of consideration, a place where two or more persons may congregate, associate, or consort for the purpose of specified sexual activities or the exposure of specified anatomical areas or activities when one or more of the persons is in a state of nudity or semi-nude. This definition shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy. "Employee" means a person who works for or performs in and/or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage or other compensation by the operator of said business. Ordinance No. 1204 Page 8 Do Fo Go Ho r. Co L° "Establishment" or "Establish" with regard to a Sexually Oriented Business means and includes any of the following: 1. The opening or commencement of any such business as a new business; 2. The conversion of an existing business, whether or not a sexually oriented business, to any of the sexually oriented businesses defined in this chapter; 3. The addition of any of the sexually oriented businesses defined in this chapter to any other existing sexually oriented business; or 4. The relocation of any such sexually oriented business. '2qudity or State of Nudity" means the showing of the human male or female genitals, public area, or buttocks with less than a fullly opaque covering, or showing of the female breast with less than a fully opaque covering of any part or the nipple, or showing the covered genitals in a discernable or turgid state. "Operator" means and includes the owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises. "Permitted or Licensed Premises" means sexually oriented business that requires a license and/or permit to operate. "Permittee and or Licensee" means a person in whose name a permit and/or license to operate a sexually oriented business has been issued, and individuals listed as applicants on the application for a permit and/or license. "Person" means an individual, proprietorship, partnership, corporation, association or other legal entity. "Public building" means any building owned, leased or held by the United States, the state, the county, the city, any special district, School District, or any other agency or' political subdivision of the state or the United States, which building is used for governmental purposes. "Public park" or "recreation area" means land which has been designated for park or recreational activities including but not limited-to a park, playground, nature trail, swimming pool, reservoir, athletic field, basketball or tennis court, pedestrian/bicycle path or trail, open space, wilderness area, or similar public land within the city which is under the control, operation, or management of the city park and recreation authorities. "Religious institution" means any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities. "Residential district or use" means property zoned for residential uses or occupied with attached and detached single family residences, duplexes, townhouses, multiple family Ordinance No. 1204 Page 9 Mo No Oo Qo residences, mObile parks, patio homes, apartments, condominiums, stock cooperative projects, and planned developments.- "School" means any public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, Continuation schools, special education schools, junior colleges, and universities. School includes the school grounds, but does not include the facilities used primarily for another purpose and only incidental to a school. "Semi-nude" means a state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breast, as well as portions of the body covered by supporting straps or devices. Semi-nude shall also include a person with partial clothing to include lingerie or similar clothing where specified anatomical areas are exposed. "Sexually oriented business" means an adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motel, adult motion picture theater, adult tanning · salon, adult theater, adult stripper or dancer, sexual encounter establishment, sex supermarket/sex mini-mall or nude model studio. "Specified anatomical areas" means and includes any of the following: 1. Less than completely and opaquely covered human genitals, pubic regions, buttocks, anuses, or female breasts below a point immediately above the top of the areolas; or . · Human male genitals in a discernibly turgid state, even if completely and opaquely coveredl Any device, costume or covering that simulates any of the body parts included in subsection (1) or (2) above. Specified criminal act" means: (1) a misdemeanor or felony offense involving sexual misconduct, including, but not limited to, all offenses listed in Penal Code Section 290, Penal Code Sections 311.2 through 311.7, Penal Code Sections 314 through 318, and subsections (a), Co), (c), (d), or (h) of Penal Code Section 647, Penal Code Section 674 or any offenses involving pimping, pandering, prostitution, lewd conduct; sex crimes against children, rape, distributing harmful matter to minors, and distributing obscenity; or (2) a felony offense involving the possession or sale of a controlled substance specified in Sections 11054, 11055, 11057, or 11058 of the Health and Safety Code. "Specified sexual activities", as used in this ordinance, means and .includes any of the following: 1. The fondling or other intentional touching of human genitals, pubic regions, buttocks, anuses', or female breasts; 2. Sex acts, normal or perverted, actual or simulated, inclUding intercourse, oral copulation, or sodomy; 9 Ordinance No. 1204 Page 10' To 3. Masturbation, actual or simulated; 4. Human genitals in a state of sexual stimulation, arousal or tumescence; 5. Excretory functions as part of or in connection with any of the activities set forth in subdivisions (1) through (4) of this subsection; 6. The actual or simulated infliction of pain by one human upon anOther, or by an individual upon himself/herself, for the purpose of the sexual gratification of release of either individual, as a result of flagellation, beating, striking, or touching of an erogenous zone, including without limitation, the thigh region, genitals, buttocks, pubic region, or, if such person is a female, a breast. "Substantial Enlargement of a Sexually Oriented Business" means increase in the floor areas' occupied by the business by more than 15 percent as the floor area existed on February 17, 1998. "Transfer of Ownership or Control of a Sexually Oriented Business" means and includes any of the following: 1. The sale, lease or sublease of the business; 2. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means; 3. The establishment of a trust, gift or other similar legal device which transfers ownership or control of the business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control. SECTION 4. PERMITTED LOCATIONS OF SEXUALLY ORIENTED BUSINESSES. g. Ao The establishment of a sexually oriented business shall be permitted only in the specified PCMU, PC-C, PCC, M, and PC-IND zoning distriCts, and shall be subject to the following restrictions. No person shall cause or permit the establishment of a sexually oriented business, as defined in this ordinance, within 500 feet of any religious institution, school, boys' club, girls' club or other youth organization, or public park or public building or within 500 feet of any residential district or use, or within 500 feet of an existing sexually oriented business. Permits for sexually oriented businesses are required and are governed by the procedures and policies specified in Section 8 of this ordinance. In addition, any sexually oriented business shall be subject to the following prohibitions: (1) A person is guilty of a misdemeanor, if he/she operates or .causes to be operated a sexually oriented business except as provided in this ordinance. (2) A person is guilty of a misdemeanor if he or she establishes or causes to be operated a sexually oriented business except as provided in this ordinance within 500 feet of: a. any religious institution b. any school . 10 Ordinance No. 1204 Page 11 (3) (4) (5) Co any residential district or use a public park a public building a boy's club, girls' club, or other youth organization A person is guilty of a misdemeanor if he/she establishes or causes to be operated a sexually oriented business within 500 feet of another sexually oriented business, except as provided in this ordinance. A person is guilty of a misdemeanor if he/she causes or permits the operation, establishment or maintenance of more than one sexually oriented business within the same building, structure or portion thereof, or causes the substantial enlargement of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business. It is a defense to prosecution under (1), (2), (3), or (4) above if a person appears in a state of nudity or displays specified anatomical areas in a modeling class operated:. a° bo c, by a proprietary school, licensed by the State of California; a college, jtmior college or university supported entirely or partly by taxation; by a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or in a structure: (1) which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and (2) where to participate in a class a student must enroll at least three (3) days in advance of the class; and (3) where no more than one nude model is on the premises at any one time. SECTION 5. MEASUREMENT OF DISTANCE. A. Bo The distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures from the closest exterior structural walls of each business. The distance between any sexually oriented business and any religious institution, school, boys' club, girls' club, or similar existing youth organization, or public park or public building or any residential district or use shall be measured in a straight line, without regard to intervening structures or objects from the nearest portion of the building or structure used as part of the premises where the sexually oriented business is conducted, to the nearest property line of the premises of any residential district or use, a religious 11 Ordinance No. 1204 Page 12 Co institution, school, boys' club, girls' club or similar existing youth organization, public park or public building. Such uses are hereinafter referred to as "sensitive uses or use". The distance shall be calculated at the time of the application of the sexually oriented business for a permit under this ordinance. For the limited purpose of determining allowable distance for a proposed application under this ordinance an "existing" sexually oriented business is one that has a valid permit or one whose application has preceded the application in question and is seeking approval. The subsequent establishment or permit application of a sensitive use as defined in B. above or sexually oriented business to locate within 500 feet of the proposed sexually oriented business shall not be considered. SECTION 6. REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED BUSINESSES. A° g. Co Any sexually oriented business lawfully operating on or before February 17, 1998, that is in violation of Sections 4 and/or 5 of this ordinance, shall be deemed non-conforming uses. A non-conforming use will be permitted to continue for a period of one year, with a possible 'extension of one year to be granted by the Planning Commission. Said extension may only be granted if the Planning Commission finds an extreme financial hardship exists which is defined as the recovery of the in/rial financial investment in the non-conforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such non-conforming uses shall not be increased, enlarged extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within 500 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at the particular location is the conforming use and the later established business(es) is non-conforming. A sexually oriented business lawfully operating as a conforming 'use is not rendered a non-conforming use by the location subsequent to the grant or renewal of a sexually oriented business permit and/or license, of a church, public or private elementary or secondary school, public park, public building, residential district, or residential lot within 500 feet of the sexually oriented business. This provision applies only to the renewal of a valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. Any sexually oriented business subject to the provisions of this section shall apply for the permit provided for by Section 8 within thirty (30) days of the effective date of this ordinance and shall comply with all applicable regulations contained within thirty (30) days of the effective date of this ordinance. SECTION 7. CIVIL INJUNCTION/MISDEMEANOR. A person who operates or causes to be operated~ a sexually oriented business in violation of this ordinance shall be guilty of a misdemeanor, and any conviction thereof, shall be punishable by a 12 Ordinance No. 1204 Page 13 fine of $1,000.00 and/or thirty (30) days imprisonment or by both such fine and imprisonment. If an injunction must be sought, attorneys fees and costs will be assessed at the discretion of the Court against such person. SECTION 8. PERMIT REQUIRED. Ao Except as provided in Section 6, no person shall establish a sexually oriented business without a valid City Sexually oriented business permit. Bo The Community Development Director or designee shall be responsible for granting, denying, revoking, renewing, suspending, or canceling sexually oriented business permits for proposed or existing sexually oriented businesses. The Community Development Director or designee shall determine if a proposed sexually oriented business for which a permit is being sought complies with all locational requirements of this Ordinance and all development and performance standards under this chapter and the respective zoning district in which the business is located. Co The Tustin Police Department shall be responsible for providing information on whether an applicant has been convicted of a specified criminal act during the time period set forth in Section 10. D. to The City's Code Enforcement and/or Police Department staff shall be responsible for inspecting a proposed, permitted or non-permitted sexually oriented business to ascertain if said business is in compliance with the provisions of this Chapter and applicable statutes and City Codes. An application for a permit must be made on a City provided form. Any person desiring to operate a sexually oriented business shall file with the City an original and two (2) copies of a permit application signed under penalty of perjury. The required signatures shall be notarized. Fo The completed application shall contain the following information and shall be accompanied by the following documents: . The applicant(s)' name and permanent address and the person(s) residing with the applicant. If the applicant is: a. an individual, the individual shall state his/her legal name and any aliases and submit satisfactory proof that he/she is eighteen years of age; b. a partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited and a copy of the partnership agreement, if any; c. a corporation, the corporation shall state its complete name, the date of incorporation, evidence that the corporation is'in good standing under the laws of the State of California, the names and capacity of all officers, directors and principal stockholders, and the name of the registered 13 Ordinance No. 1204 Page 14 . o . o . . . o 10. ' corporate agent and the address of the registered office for service of process. If the applicant intends to operate the sexually oriented business under a name other than that of the applicant, the application shall include: a. the sexually oriented business's fictitious name; and b. the required City of Tustin business license application documents. If the applicant or any of the other individuals required to be listed pursuant to this section has, within the two (2) or five (5) year period as specified in Section 10 immediately preceding the date of the application, been convicted of a specified criminal act, and if so, the specified criminal act involved, the date of'conviction and the place of conviction. As used in this ordinance, a conviction includes a plea of nolo contendre. If the applicant or any of the other individuals required to be listed in an application pursuant to this section has had a permit under this Ordinance or other similar sexually oriented business ordinance fi.om another city or county denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, the date of the denial, suspension or revocation and if the applicant or any other individuals listed in the application pursuant to this Section has been a partner in a parmership or an officer, director or principal stockholder of a corporation Whose sexually oriented business permit has previously been denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked and the date of denial, suspension or revocation. If the applicant or any other individual required to be listed pursuant to this Section holds any other permits and/or licenses under this Ordinance or other similar sexually oriented business ordinance fi.om another city or county and, if so, the names and locations of such other permitted businesses. A detailed description of the proposed entertainment, services, and/or use. The location of the proposed sexually oriented business, including a legal description of the property, street address, and telephone number(s). The applicant(s) recent photograph(s). The applicant(s)' driver's license numbers, social security numbers and or state or federally issued tax identification numbers. A detailed site plan showing the configuration of the premises and buildings, including the total floor, space proposed to be occupied by the business. The site plan shall be drawn to scale at a minimum of 1 inch = 20 feet. 14 Ordinance No. 1204 Page 15 Ho 11. A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a California registered land surveyor or engineer depicting the property lines and the structures containing any existing valid sensitive use as defined in Section 5.B. or sexually oriented business within 500 feet of the property proposed to be occupied by a sexually oriented business to be certified. See Section 5 for measurement of distances. 12. If a person who wishes to operate a sexually oriented business is an individual, he/she must sign the application for a permit as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a ten percent (10%) or greater ownership interest in the business must sign the application for a.pennit as an applicant. If a corporation is listed as owner of a sexually oriented business or as the entity which wishes to operate such a business, each individual having a ten percent (10%) or greater interest in the corporation must sign the application for a permit as an applicant. The legal owner(s) or the real property shall also sign and indicate consent to the application. Said application and signatures shall be notarized and signed under penalty of perjury. 13. If a person wishes to operate a sexually oriented business which exhibits on the premises films, video cassettes, or other video reproductions which depict specified sexual activities or specified anatomical areas, then said person shall comply with the application requirements stated in Section 19. Applicants for a permit under this Section shall have a continuing duty to supplement application information required by this Section if said information changes in any way from what is stated on the application. The failure to comply with said continuing duty within thirty (30) days from the date of such change, by supplementing the application on file with the Community Development Director or his/her designee shall be grounds for suspension of a permit. If the Community Development Director or designee determines that the applicant has improperly completed the application for a proposed sexually oriented business or finds that a submitted application is incomplete, the applicant shall be notified and shall have ten (10) days to complete the application. (The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an oppommity to complete the application.) The'applicant must be qualified according to the provisions of this Ordinance and the premises must be inspected and found to be in compliance with Zoning, health, fire and building codes and other applicable laws. The applicant shall be required to pay a non-refundable application fee at the time of filing an application under this Section of this Ordinance. 15 Ordinance No. 1204 Page 16 Ko Prior to investigating an application for a permit to operate a sexually oriented business, and as part of any application for a permit under this Section, the applicant shall obtain City certification that the proposed location of such business complies with the locational and distancing requirements of this Ordinance. Lo The fact that .a person possesses other types of state or city permits and/or licenses does not exempt him/her from the requirement of obtaining a sexually oriented business permit. Mo By applying for a permit under this Ordinance, the applicant shall be deemed to have consented to the provisions of this Ordinance and to the exercise by the Community Development Director or designee, the Tustin Police Department and all other agencies charged with enforcing the laws, ordinances and codes applicable in the City. N. The applicant shall be required to provide the City with the names of any and all employees, independent contractors or other persons who are required to be licensed pursuant to Section 18. This shall be a continuing requirement even after a permit is granted or renewed. SECTION 9. INVESTIGATION OF PERMIT APPLICATION. Upon receipt of a complete application for a sexually oriented business permit and payment of the non-refundable application fee, the City 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 Ordinance. All investigations shall be completed within thirty (30) days of receipt of the application. SECTION 10. ISSUANCE OF PERMIT/CONDITIONAL GRANT. Ao The Community Development Director or designee, shall grant, grant upon conditionl 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 or designee, of such grant, conditional grant or denial of the application, and shall state the reasons(s) 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 with the time frames described in Section 10.C.l.i. Such conditional grant shall not constitute a vested right to operate under the permit. If the Community Development Director or designee neither grants nor denies the application within thirty (30) days after the complete application is stamped received (except as provided in Section 8.H.), the application shall be forwarded to the City 16 Ordinance No. 1204 Page 17 Bo Co Council at its next regularly scheduled meeting for consideration in conformance with the provisions of this SectiOn. Grant of Application for Permit o The Community Development Director or designee, shall grant the permit or grant upon condition unless one or more of the criteria set forth in Section 10.C. below is present, except that a conditional grant issued shall be null and void upon the City's receipt of disqualifying information and subsequent denial. . The permit, if granted, shall state the name of the person(s) to whom the permit is granted, the expiration date, and the address of the sexually oriented business. The permit shall be posted by the permittee in a conspicuous place at or near the entrance to the sexually oriented business. Denial of Application for Permit o The Community Development Director or designee, shall deny the application for any of the following reasons: a. ce d, eo g° An applicant is under eighteen years of age. An applicant or'a person residing with the applicant has been denied a permit to operate a sexually oriented business within the City within the preceding twelve (12) months, or the applicant is residing with a person whose permit to operate a sexually oriented business within the City has been revoked within the preceding twelve (12) months. An applicant has failed to provide required information in the application or has provided false or misleading information in the application. The premises to be used for the sexually oriented business have not been approved as being in' compliance with zoning, health, fire and building codes by the department or agency responsible under law for investigating said compliance. If a variance from such codes is permitted by the Tustin City Code, the applicant shall be permitted to apply for a variance and if the variance is granted, the applicant may reapply for the sexually oriented business permit. If the variance request is approved, the-application fee shall be waived or reduced by the Community Development Director or designee, if no further or minimal investigation is required. All application information shall be updated by the applicant. The application or permit fees required by this Ordinance have not been paid. An applicant of the proposed business is in violation of, or is not in compliance with, any of the provisions of this Ordinance including but not limited to the zoning locational requirements for a sexually oriented business under Sections 3, 5 and 6. The granting of the application would violate a statute, ordinance or court order. 17 Ordinance No. 1204 Page 18 he The applicant has a permit under this Ordinance which has been suspended or revoked. An applicant has been convicted of a "specified criminal" act for which: (1) less than two (2) years have elapsed since the date of conviction, or. the date of release from confinement, whichever is the later date, if the conviction is a misdemeanor offense to a "specified criminal act". (2) less than five (5) years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a felony offense for a "specified criminal act." (3) less than five (5) years have elapsed since the date of conviction(s) or the date of release from confinement, whichever is the later date, if the convictions are of two or more misdemeanor offenses for "specified criminal acts". (4) the fact that a conviction is being apPealed shall have no effect on disqualification of the applicant; (5) an applicant who has be convicted of "specified criminal acts" within the above-described time periods may qualify and apply for a sexually oriented business permit when the time period(s) has elapsed. An applicant knowingly has in his or her employ, an employee who does not have a valid license as required in Section 18. . If the Community Development Director or designee, denies the application, the Director shall notify the applicant in writing of the denial and state the reason(s) for the denial. The applicant shall have the right to appeal in accordance with Section 16. Pending a final decision on the appeal, the applicant shall not have the right to operate or establish a'sexually oriented business in the City. o If a person applies for a permit for a particular location within a period of twelve (12) months from the date of denial of a previous application for a permit at the location, and there has not been an intervening change in the circumstances which could reasonably be expected to lead to a different decision regarding the former reasons for denial, the application shall be denied. SECTION 11. ANNUAL APPLICATION/PERMIT FEE The annual application/permit fee deposit for a sexually oriented business permit is one thousand dollars ($1,000.00), respectively. If the City's actual costs are less than $1,000.00 to review, investigate, or conduct an annual inspection, respectively, for a sexually oriented business, the applicant shall be refunded the balance. If the City's review, investigation, and annual inspections, respectively, exceeds $1,000.00, the applicant shall pay the increase prior to the issuance of a permit to operate. Ordinance No. 1204 Page 19 SECTION 12. INSPECTION. Ao An applicant or permittee shall permit representatives of the Community Development Department, Code Enforcement Division, the County Health Department, and the Fire Authority to inSPect the premises of a sexually oriented business for the purpose of insuring compliance With the law at any time it is occupied or open for business. Bo It shall be unlawful and a person or his/her agent or employee commits a misdemeanor if he/she operates a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, if he/she refuses to permit such lawful inspection of the premises at any time the business is occupied or open for business. SECTION 13. EXPIRATION OF PERMIT. A° Each permit shall expire one (1) year fi.om the date of issuance and may be renewed only by making application as provided in Section 8 (for renewals, filing of original survey shall be sufficient) of this Ordinance. Application for renewal shall be made at least thirty (30) days before the expiration date. When application for renewal is filed less than thirty (30) days before the expiration date, the expiration date shall not be stayed. Bo When the community Development Director or designee, denies renewal of the permit, the applicant shall not be-issued a permit under this Ordinance for one (1) year fi.om the date of denial. If, subsequent to denial, the Community Development Director or designee, finds that the basis for denial of the renewal of the permit has been corrected, the applicant shall be granted a permit if at least ninety (90) days have elapsed since the denial date. An applicant for renewal of a permit shall have the fight to appeal to the City Council pursuant to Section 16 and unless their previous permit had been suspended or revoked at the time the previous permit expired, the applicant may operate pending final City Council action. SECTION 14. GROUNDS FOR SUSPENSION/REVOCATION OF PERMIT. A. SUSPENSION The Community Development Director or designee, shall suspend a' permit for a period not to exceed ~ (30) days if the Director determines that a permi'ttee, or an employee of a permittee, has: 1. Violated or is not in compliance with any section of this Ordinance; or 2. Been under the influence of alcoholic beverages or a controlled substance while working.in the sexually oriented business premises; or 3. Refused to allow an inspection of sexually oriented business premises as authorized by this Ordinance; or 4. Knowingly permitted gambling by any person on the sexually oriented business premises; or 5. Operated the sexually oriented business in violation of a building, fire, health or zoning statute, code, ordinance or regulation, whether federal, state or local said 19 Ordinance No. 1204 Page 20 . . o determination being based on investigation by the department or agency charged with enforcing said rules or laws.' In the event of such statute code, ordinance or regulation violation, the City shall promptly notify the permittee of the violation and shall allow the permittee a seven (7) day period in which to correct the violation. If the permittee fails to correct the violation before the expiration of the seven (7) day period, the City shall forthwith suspend the permit and shall notify the permittee of the suspension; or Engaged in permit transfer contrary to Section 17 of this Ordinance. If a permit is suspended on the grounds that a permittee engaged in a permit transfer contrary to Section 17 of this Ordinance, the Community Development Director or designee shall forthwith, notify the perrnittee of the suspension; or Operated the sexually oriented business in violation of the hours of operation set forth in Section 22; or Knowingly employed a person who does not have a valid license as required in Section 18 of this Ordinance. B. REVOCATION The Community Development Director or designee shall revoke a permit if a basis for suspension described in Section 14.A. of this Ordinance occurs, and the permit has previously been suspended within the preceding twelve (12) months. In addition, the Community Development Director or designee, shall revoke a permit upon determining that: 1. A permittee gave false or misleading information in the application material submitted during the application process; or 2. A permittee or a management employee of permittee has knowingly allowed possession, use or sale of controlled substances on the premises; or 3. A permittee or a management employee has knowingly allowed prostitution on the premises; or 4. A permittee or management employee' knowingly operated the sexually oriented business during a period of time when the permittee's permit was suspended; or 5. A permittee has been convicted of a "specified criminal act" during the time period of the permits; or 6. On two or more occasions within a twelve (12) month period, a person or persons committed an offense, occurring in or on the permitted premises, constituting a specified criminal, act for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed. The fact that a conviction is being appealed shall have no effect on the revocation of the permit; or 7. A permittee or a management employee has knowingly allowed an act of sexual intercourse, sodomy, oral copulation, masturbation or any other specified sexual activities to occur in or on the permitted premises. 8. A permittee has been operating more than one sexually oriented business under a single roof. 20 Ordinance No. 1204 Page 21 SECTION 15. NOTICE AND HEARING ON PROPOSED SUSPENSION/REVOCATION A. On determining that grounds for permit suspension or revocation exist, the Community Development~ Director shall furnish written Notice of the Proposed Suspension or Revocation to the permittee. Such notice shall set forth the time and place of a hearing, and the ground or grounds upon which the hearing is based, the pertinent Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, certified, remm receipt requested, addressed to the last known address of the permittee, or shall be delivered to the permittee personally, at least ten (10) days prior to the hearing date. Hearings shall be conducted in accordance with procedures established by the Community Development Director, but at a minimum shall include the following: All parties involved shall have a right to offer testimonial, documentary, and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this Section may be continued by the Community Development' Director for good cause. The Community. Development decision may be appealed to the City Council in accordance with Section 16 of this ordinance. Bo The decision of the Community Development Director shall be in writing, and if the decision is to suspend or revoke the permit, a Notice of Suspension or Notice of Revocation shall be delivered to the permittee. If personally delivered, or by facsimile, delivery shall be complete upon the day of delivery. If delivered by any other means, delivery shall be complete upon the date of signed receipt. SECTION 16. APPEAL OF PERMIT DENIAL/SUSPENSION/REVOCATION. Ao After denial of an application, or denial of a renewal.of an application, Notice of a Suspension or Notice of a Revocation of a permit by the Community Development Director, the. applicant or permittee may seek review of such action by an appeal to the City Council by filing a letter request with the City Clerk within five (5) business days of delivery of the Notice of Denial, Notice of Suspension, or Notice of Revocation to the applicant/permittee. A timely appeal shall stay the denial of renewal of an application (except as provided in Section 13.B.), a suspension, or a revocation until final action by the City Council. Bo The City Clerk shall set a hearing on an appeal at a next regularly scheduled City Council meeting. The City Council shall take action on the appeal within forty five (45) days of the filing of the appeal, unless the appellant has requested a continuance(s) and the continuance(s) has been granted. Action by the City Council is final. The applicant or 21 Ordinance No. 1204 Page 22 permittee may seek prompt judicial review pursuant to CCP Section 1094.5 and the City shall make all reasonable efforts to expedite judicial review if sought. Co When the Community Development Director or designee or City Council revokes a permit, the revocation shall continue for one (1) year and the permittee shall not be issued a sexually oriented business permit for one (1) year from the date revocation became effective. If, subsequent to revocation the Community Development Director or designee finds .that the basis for revocation has been corrected, the applicant shall be granted a permit. SECTION 17. UNAUTHORIZED OPERATION/TRANSFER OF PERMIT. Ao A permittee shall not operate a sexually oriented business under the authority of a permit at any place other than the address designated in the application for permit. Bo A permittee shall not transfer a permit to another person unless and until such other person has applied and been approved for issuance of a permit under this ordinance and pays a transfer fee of twenty percent (20%) of the annual permit fee. C. No permit may be transferred after the Community Development Director or designee has notified the permittee that suspension or revocation proceedings have been or will be brought against the permittee in that a removal of a permit has been denied, until the permit in.question is. reestablished in good standing. Do Any attempt to transfer a permit either directly or indirectly in violation of this Section is hereby declared void. SECTION 18. SEXUALLY ORIENTED SERVICE PROVIDERS LICENSE. Ao Each individual who provides services of any kind whether or not an employee, independent contractor, or sole proprietor in a sexually oriented business, except for the permitee(s) holding a permit under Section 10 of this ordinance, shall be required to obtain a Sexually Oriented Service Providers License. Each applicant shall pay a permit fee of forty dollars ($40.00). Said fee is to cover reasonable investigative administrative costs of the licensing application process. Before any applicant may be issued a Sexually Oriented Business Service Providers License, the applicant shall submit on a City provided form under penalty of perjury, the following information: 1. The applicant's name or any other names (including "stage" names) or aliases used by the individual; 2. Age, date and place of birth; 3. Height, weight, hair and eye color; 4. Current residence address and telephone number; 5. Current business address and telephone number; 22 Ordinance No. 1204 Page 23 6. State driver's license or identification number; 7. Social security number; 8. Acceptable written proof that the individual is at least eighteen (18) years of age. 9. Attached to the application form as provided above, a color photograph of the applicant clearly showing the applicant's face, and the applicant's fingerprints on a form provided by the Tustin Police Department. Fees for the photographs and fingerprints shall be paid by the applicant. 10. A statement detailing the applicant's sexually oriented business license or permit history for the five (5) years immediately preceding the date of the filing of the application, including whether such applicant previously operating or seeking to operate, in this or any other county, city state or country has ever had a license, permit or authorization for a sexually oriented business denied, revoked or suspended or had any applicable professional or vocational license permit denied, revoked or suspended. If any such denial, revocation, or suspension, state the date, name of the isSuing or denying jurisdiction and describe in full the reasons for the denial, revocation or suspension. A copy of any order of denial, revocation or suspension shall be attached to the application; and 11. Whether the.applicant has been convicted of a "specified criminal" act as defined in this Ordinance. This information shall include the date, place and nature of each conviction and identifying the convicting jurisdiction, and, 12. The Community Development Director or designee shall refer the Sexually Oriented Business Service Providers License Application to the Tustin Police Department for an investigation to be made of such information as is contained on the application. The application process shall be completed within five (5) business days from the date the completed application is filed. After the investigation, the Community Development Director or designee shall issue a license unless the report from the Tustin Police Department finds that one or more of the following findings is tree: a. That the applicant has knowingly made any false, misleading or fraudulent statement of a material fact in the application for a license, or in any .report or record required to be filed with the Police Department or other City department or agency; b. That the applicant is under eighteen (18) years of age; c. That the applicant has been convicted of a "specified criminal act" as defined in this Ordinance within the last five (5) years. d. That the Sexually Oriented Business Service Provider License is to be used for employment in a business prohibited by local or state law, statute, rule or regulation, or prohibited by particular provisions of this Ordinance; e. That the applicant has had 'a Sexually Oriented Business Service Provider License revoked by the City within two (2) years of the date of the current application.. f. The license fee required by this ordinance has not been paid. 23 Ordinance No. 1204 Page 24 C. Renewal of License: . A license granted pursuant to this Section shall be subject to annual renewal by the Commtmity Development Director or designee upon the written application of the applicant and a finding by the Community Development Director or designee and the Tustin Police Department that the applicant has not been convicted of any specified criminal act as defined in this Ordinance within the last five (5) years or the applicant has committed any act during the existence of the previous license period which would be grounds to deny the initial permit application; or the applicant has not violated any provisions of this ordinance. 2. The renewal of the license shall be subject to payment ora fee in the amount of $40200 D. Appeals: A denial of an application, or a renewal, or the suspension or revocation of a license shall be processed by the city and shall be subject to appeal in'the same manner as permits for a sexually Oriented business. See Sections 15 and 16. SECTION 19. REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS IN VIDEO BOOTHS. Ao A person who operates or causes to be operated a sexually oriented business, other than a sexually oriented motel/hotel and regardless of whether or not a permit has been issued to said business under this Ordinance, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements: , Upon application for a seXually oriented business permit, the application, shall be accompanied by a detailed site and building plan specifying the location of one or more manager's stations, the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area with no dimension greater than eight (8) feet. The diagram shall also designate the place at which this permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each site and building plan shall be oriented to the north or to some designated street or object and should be drawn to a scale not less that 1 inch = 20 feet. The Community Development Director or designee, may waive the foregoing diagram for renewal applications if the applicant adopts a site and building plan that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. 2. The application shall be sworn to be true and correct by the applicant. The applicant(s)' and owner(s)' signatures shall be notarized. 24 Ordinance No. 1204 Page 25 3. No alteration in the configuration or location of a manager's station may be made without prior City approval. . The owners and operator of the premises shall insure that at least one employee is on duty and situated at each manager's station at all times that any patron is present inside the premises. . . The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding rest rooms. Restrooms may not contain video reproduction equipment. If the premises have two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be direct line of sight from the manager's station. It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employee present on the premises to insure that the view area specified in Subsection 5 remains unobstructed by any doors, walls, merchandise, display racks or other materials or person at all times and to insure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A. of this Section. . No viewing room may be occupied bY more than one person at any one time. No holes, commonly known as "glory holes", shall be allowed in the walls or partitions which separate each viewing room from an adjoining viewing room or restroom. . The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access and an illumifiation of not less than two (2.0) foot candle as measured at the floor level. . It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present on the premises to insure that the illumination described above is maintained at all times that any patron is present on the premises. B. ' A person having a duty under Section 19. A. 1.-9. shall be guilty of a misdemeanor if he/she knowingly fails to fulfill that duty. SECTION 20. PROHIBITIONS REGARDING MINORS AND SEXUALLY ORIENTED BUSINESSES. A person is prohibited from and is guilty of a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and knowingly or with reasonable cause to know, permit, suffer, or allow: 25 Ordinance No. 1204 Page 26 ^. Admittance of a person under eighteen (18) years of age to enter the business premises unless accompanied by a parent or guardian; B. A person under eighteen (18) years of age to remain at the business premises unless accompanied by a parent or guardian; C. A person under eighteen (18) years of age to purchase goods or services at the business premises without the specific consent of a parent or guardian; or D. A persOn who is under eighteen (18) years of age to work at the business premises as an employee. SECTION 21. ADVERTISING AND LIGHTING REGULATIONS. A. It shall be unlawful and a person shall be guilty of a misdemeanor if he/she operates or causes to be operated a sexually oriented business, and advertises the presentation of any activity prohibited by any applicable state statute or local ordinance. Bo It shall be unlawful and a person shall be guilty of a misdemeanor if he/she operates or causes to be operated a sexually oriented business, and displays or otherwise exhibits the materials and/or performances at such sexually oriented business in 'any advertising which is visible outside the premises. This prohibition shall not extend to advertising of the existence, name, or location of such sexually oriented business. c. The interior premises of a sexually oriented business shall not be visible from outside the premises. Do All off-street parking areas and premise entries of a sexually oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one (1.0) foot-candle'of light on the parking surface and/or walkways. This required lighting level is established to provide sufficient illumination of the parking areas and walkways serving the sexually oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct. A lighting plan shall be submitted to the Community Development Director or designee. Bo Nothing contained in this Section shall relieve' the operator(s) of a sexually oriented business from complying with the requirements of this Ordinance, zoning, building, health and fire codes as may be amended form time to time or any subsequently enacted City ordinances or regulations. F. The regulations contained in this section apply regardless of whether a person has a valid permit under this ordinance. 26 Ordinance No. 1204 Page 27 SECTION 22. HOURS OF OPERATION. These regulations apply regardless of whether a person has a valid permit under this ordinance. Ao It shall be unlawful and a person is guilty of a misdemeanor if he/she operates or causes to be operated a sexually oriented business, and allows such business to remain, open for business or to permit any service provider in the business 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 12:00 a.m. and 9:00 a.m. of any particular day. Bo It shall be unlawful and a person is guilty of a misdemeanor if, working as a service provider in a sexually oriented business, the service provider engages and peffo .rms, solicits a performance, makes a sale, solicits a sale, provides a service, or solicits a service between the hours of 12:00 a.m. and 9:00 a.m. of any particular day. SECTION 23. PARKING. Sexually oriented businesses shall comply with the parking requirements set forth in the respective zoning district and the City of Tustin Parking Design Standards and Landscape and Irrigation Guidelines. The number of parking spaces provided shall be the equivalent of that required for new construction, regardless of the status of the legal nonconforming parking rights of the previous use. SECTION 24. SECURITY Each sexually oriented business shall provide a security system that visually records and monitors all parking lot areas serving the use. All indoor areas of the business shall be open to public view at all times with exception of restroom facilities. "Accessible to the public" shall include those areas which are only accessible to members of the public who pay a fee and/or join a. private club or organization. Further, the sexually oriented business shall provide security guards, who are state licensed, armed, uniformed and approved by the City of Tustin Police Department, during all hours of operation. The number of such guards so required shall be determined by the Chief of Police, and such number may be increased, at the Chief's discretion, if such increase is necessary to protect the public peace and the surrounding neighborhood. SECTION 25. REGULATIONS PERTAINING TO LIVE ENTERTAINMENT. These regulations apply regardless of whether a sexually oriented business has a valid permit to operate. Ao For purposes of this Section, "live entertainment" is defined as a person who appears nude, semi-nude or a performance which is characterized by the exposure of"specified anatomical areas" or by "specified sexual activities". 27 Ordinance No. 1204 Page 28 Bo Co D'° Fo Go Ho No person shall perform live entertainment for patron(s) of a sexually oriented business except upon a stage at least eighteen (18) inches above the level of the floor which is separated by a distance of at least ten (10) feet from the nearest area occupied by patron(s). No patron shall be permitted within ten (10) feet of the stage while the stage is occupied by a performer. The sexually oriented business shall provide separate dressing room facilities for female and male performers which shall not be occupied or used in any way by any one other than performers. The sexually oriented business shall provide access for performers between the stage and the dressing rooms which is completely separated from the patrons. If such separate access is not physically feasible, the establishment shall provide a minimum four (4) foot wide walk aisle for performers between the dressing room area and the stage with a railing, fence or other barrier separating the patrons and the performers which prevents any physical contact between patrons and performers. No entertainer, either before, during or after a performance, shall have physical contact with any patron and no patron shall have physical contact with any entertainer either before, during or after a performance. This subsection shall only apply to physical contact while in or on the premises of the establishment. Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between performers and patrons required by this section. No patron shall directly pay or give any gratuity to any entertainer. A patron who wishes to pay or give a gratuity to a performer shall place the gratuity in a container that is at all times located separately from the performers for the purpose of preventing any physical contact between a patron and a performer. No performer shall solicit any gratuity from any patron. No operator of a sexually oriented business establishment shall cause or allow a performer to contract or engage in any entertainment such as a "couch" or a "straddle" dance with a patron while in or on the establishment premises. No performer shall contract to or engage in a "couch" or "straddle" dance with a patron while in or on the establishment premises. For purposes of this subsection, "couch" or "straddle" dance is defined as an employee of the establishment intentionally touching or coming within ten (10) feet of any patron while engaged in the display or exposure of any "specified anatomical area", or any "specified sexual activity". For purposes of this subsection, "employee" is defined as it is in Section 2.B. This section shall not apply to an employee of a sexually oriented business who, while acting as a waiter, waitress, host, hostess or bartender, comes within ten (10)feet of a patron. No employee shall engage in any specified sexual activity or display or expose any specified anatomical area while acting as a waiter, waitress, host, hostess or bartender. 28 Ordinance No. 1204 Page 29 J. Compliance with this section: . No sexually oriented business shall be deemed in compliance with this Section until the City's designated agent(s) have inspected and.approved compliance. The City shall have ten (10) days from the date it receives written notice from the operator that the business is ready for inspection to approve or disapprove of compliance required by this Section. Failure of the City to approve or disapprove compliance within ten (10) days shall constitute a finding of compliance under this Section. . The operator of a sexually oriented business, that has been providing live entertainment under a valid sexually oriented business permit, shall have the time periods listed below in which to bring the establishment into compliance with this Section. Failure to do so while continuing to provide life entertainment shall cause the establishment's permit to be suspended under this Ordinance. The permit shall remain suspended until the establishment is approved by the City's designated agent(s) as being in full compliance with this Section. . The operator of an existing sexually oriented business operating under a valid permit who wishes to pr°vide live entertainment, shall apply for and receive a second sexually oriented business permit for the live entertainment before any live entertainment is provided at that establishment. No live entertainment permit shall be issued until the establishment is approved as being in full compliance with this Section, all other applicable requirements of this Ordinance, and the City zoning, building, health, and fire codes. 4. Subsection B shall become effective sixty (60) days from the effective date of this ordinance. 5. Subsection C shall become effective ninety (90) days from the effective date of this ordinance. 6. Subsection D shall .become effective ninety (90) days from the effective date of this ordinance. 7. Subsection E shall become effective upon adoption of this ordinance. 8. Subsection F shall become effective sixty (60) days from the effective date of this ordinance. 9. Subsection .G shall become effective upon adoption of this ordinance. 10. Subsection H shall become effective upon adoption of this ordinance. 29 Ordinance No. 1204 Page 30 SECTION 26. OPERATION OF A SEXUALLY ORIENTED BUSINESS WITHOUT A VALID PERMIT. A. In addition to the criminal provisions found in other sections of this Ordinance, the following additional criminal provisions shall also apply to sexually oriented businesses. Bo It shall be unlawful and a person is guilty of a misdemeanor if he/she operates or causes to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this Ordinance, and said person knows or should know that: 1. The business does not have a sexually oriented business permit under this Ordinance; 2. The business has a suspended permit. 3. The sexually oriented business permit has been revoked or, 4. The business has a permit which has expired. SECTION 27. CRIMINAL PENALTIES AND ADDITIONAL. LEGAL, EQUITABLE AND INJUNCTIVE RELIEF. Ao In addition to whatever penalties are applicable under the Tustin City Code, if any person fails or refuses to obey or comply with or violates any of the provisions of this Ordinance, such person upon conviction of such offense, shall be guilty of a misdemeanor and shall be punished by a fine as provided by law or by imprisonment not to exceed sixty (60) days in the City jail, or both, in the discretion of the Court. Each violation or non-compliance shall be considered a separate and distinct offense. Further, each day of continued violation or non-compliance shall be considered as a separate offense. B° Nothing herein contained shall prevent or restrict the City from taking such other lawful action in any court of competent jurisdiction as is necessary to prevent or remedy any violation or non-compliance. Such other lawful actions shall include, but shall not be limited to an equitable action for injunctive relief or an action at law for damages. Co Further, nothing in this Section shall be construed to prohibit the City from prosecuting any violation of this Ordinance by means established pursuant to the authority as provided by the laws of the City of Tustin: Do All remedies and penalties provided for in this Section shall be cumulative and independently available to the City and the City shall be authorized to pursue any and all remedies set forth in this Section to the full extent allowed by law. SECTION 28. REPEAL OF CONFLICTING PROVISIONS All Tustin ordinances or parts of ordinances in conflict with the provision of this ordinance are hereby repealed. 30 'Ordinance No. 1204 Page 31 SECTION 29. SEVERABILITY. If any Section, subsection sentence, clause, phrase or portion of this ordinance is for any reason held out to be invalid or unconstitutional by the decision o£ any court of competent jurisdiction. such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of this City of Tustin hereby declares that it would have adopted this ordinance and each portion, section, subsection, sentence, clause phrase, or portion thereof irrespective of the fact that any one or more section, subsection, sentences, clauses, phrases, or portion be declared invalid or unconstitutional. PASSED, APPROVED, ADOPTED by the City Council of the City of Tustin at a regular meeting held on the~ day of THOMAS R. SALTARELLI Mayor 'PAMELA STOKER CITY CLERK EAB:kbm\ordinanc\1204sob.doc 31 Ordinance No. 1204 Page 32 STATE OF CALIFORNIA coUNTy OF ORANGE CITY OF .TUSTIN CERTIFICATION FOR ORDINANCE NO. 1204 PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance duly and regularly introduced and read at the regular meeting of the City Council held on the __ day of ., 1998 and was given second reading, passed and adopted at a regular meeting of the City Council held on the day of ., 1998 by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: Pamela Stoker, City Clerk 32 ATTACHMENT C 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. Po'st-Renton Cases Discussing Alternative Avenues of Communication for Sexually Oriented Businesses CASE NAME ORDINANCE Renton v. P!avdme Tneatres~ 475 U.S. 41 (1986). STATISTICS Function Junction. Inc. v. Citw of Da_vtona Beach~ 705 F. Supp. 544 (]VI.D; Fla. 1987). 1,000 feet from sensitive uses, and within one mile of a school 400 feet from sensitive uses & 1,000 feet from another adult business S & G News, Inc. v. Ci~ 1,000 ft of of Southgate, 638 F. Supp. another adult 1060 0E.D. Mich. 1986), afff d without published opinion, 819 F.2d 1142 (tth Cir. I98~. International Food & Beverag~ Systems v. City of Fort Lauderdale, 794 F.2d 1526 (1986); on remand to, 664 F. Supp. 482 (S.D. FIa. 1987), afl'd, 838 F.2d 1220 (1 lth Cir. 1988). business or within 500 ft of a residential dwelling 750 feet from sensitive uses or other adult businesses ORDINANCE UPI-IELD ? Yes Yes Yes Yes Pop: 32,000 Available land: 520 acres, which =s 5% of total land. A city official.testified that 8 adult uses could. located on the 12 available sites. 2.3 % of total land was available for adult ' '- uses. City populatiori: 30,647 City land: 4,400 acres of land'(0r 6.9 square miles). City has 31 square miles and population of 156,000. -More than 10 adult bars were in existence. -22 to 25 available sites (I0 of which were locations where adult uses already existed). -~4.TIONALE7 TEST The ordinance must be "designed to serve a substantial governmental interest and [must allow] for reasonable alternative avenues of communication.." Without evaluating exactly how much land is enough, the court found the ordinance was reasonable. 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 thc wishes of thc nude bar proprietors.'" 705 F. Supp. at 552 (quoting International Food & Beverage Sys. tems, 794 F.2d at 1526). "South. gate clearly allows sufficient alternafive'rneans of expression, since adult uses are allowed in... 2.3 per cent of the land in South'gate.': 638 F. Supp.. at O66. Ordinances may ban establishments completely which sell alcohol and provide nude entertainment, so this ordinance which merely adds time, place and manner restrictions is OK. "We are at a loss how [th~ district judge] could determine as many as 22 sites for such bars were not enough..." The city may restrict businesses, just not unreasonably. 4 CASE NAME [ ORDINANCE I ORDINANCE I STATISTICSuPH~ELD ? RATIONALE/TEST ,, , Countw of Cook v. Ordinance Yes Total County land: This was reasonable even Renaissance Arcade & restricts adult .190.59 square though avail~'ble land was in Bookstor. c., 522 N.E.2d 73 uses to 78 miles, undesirable industrial area ( II1. 1988). industrially 10.8 square miles was where water and sewer were zoned areas, and permissible for adult inaccessible. in _-,5 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 Promrties 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 wer,5' .avail'able, which was barrier between adult (gth Cir. 1988), cert. 'business. effectively/, 1.4% of t~"e land. ' businesses, was what dem'et~ 490 U.S. 1086 precluded, disting'uished this case fr~m (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. Cirv 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.-'-Ciry-~ small geographic size, the App. f989), and 1,000 feet estimated 5% of area.' double restriction in the from another would ~av. ailabld~'~ut ordinance (1,000 f~t 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 Thc Court reported that Would be even less. other courts have frequently found that thc 1,000 foot separation requireme, nt between adult businesses · . fails to leave adequate opportunity for adult businesses to operate. Bonncll, Ir~c. v. Board of 5 year Yes - -" 44 locations avail~blc ' Adequate altemativc' Adjustment, 791 P.2d I07 amortization, totaling 1,100 acres, locations availabIc. (Okla. Ct. App. I989). .5. CASE NAME [.ORDINANCE ] OR.DINANCE { STATISTICSuPHELD ? RATIONALE/TEST · Town of Islip v. Caviglia` Must be in Yes Adult businesses Alternative .ayenues 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 OlX/n decrease. roads. Town = 95 sq. miles Population= 300,000 ' SD J, Inc. v. City of 750 feet, and Yes No sp/.cific statistics Adequate alternative sites Houston, 636 F. Supp. 1,000 feet from given. Court stated were available. To be. 1359 (S.D. Tex. 1986), anothe? adult generally that available the "sites need not afl'd, 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 unavaili~ble of Bovnton Beach, 736 F. and other SOBs found valid, but City land: 15.75 was not a relevant factor. I I 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. "" 3.~ % of tectal land.. Alternative sites do not statutory ,.~ _---"' need to be practically or procedu~ rules __._.. commercially viable. , Dumas v. Ci _ty. of Dallas, 1,000 feet Yes 8 to I0 percent (21,000 648 F. Supp.. 1061 (N.D. 3 year acres) of city land was Tex.), afff d sub. nom. amortization, available. FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (Sth Cir. 1988), rev'd on other ground, s, 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. Ci[y of Cleveland, sensitive uses or ".._..::of ~8,384 acres were land is "unduly restrictive 585 N.E. 2d 908 (Ohio Ct. from any other available foi' adult uses and sig'nificantly curtails App. 1990). adult. (.00007% of total), freedom of expression and businesses, access to protected speech." 585 N.E.2d at 911. Alexander v. Citv'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 altemative sites. (Sth Cir. 1991) businesses to land. one particular district Woodall v. City of El Paso,' 1,000 feet · Remanded for Ordinance allowed for Court remanded to exclude 950 F.2d 255(Sth. Cir.), consideration by 59 businesses on from consid&a'tion land with ,,-od;fled, O~0 l=.O_cI I205 jury under new 1,165 acres, which is physical characteristics (Sth Cir. 1992) (per test of what land 1% of E1 Paso's m ~aki. ng.it unavailable for any curiam), cert. denied, 113 is to be I58,000 acres. All 39 type of development, and S.Ct. 304 (1992). considered of the existing adult land with legal characteristics available, businesses were m 'aking it unavailable for required to relocate, adult businesses. I_a. keland Lounge v. City of ' Yes 4 locations with 8 to The definition of "available" hckson, 973 F.2d 1255. 10 sites were available does no mean the adult (Sth 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 · subitantial number of excluded from alternative potential sites do relocation areas. exist." "There is no requirement 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 J'ackson, so .. it does not limit expression." . D.G. Restaurant v. City of '500 f~,.~.t Yes 26 potential sites, adult businesses' arg~.zment Myrtle Beach, 953 F.2d that the available sites were in' 'i ~-~0 (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 ' ' '" . " enhghtenment. Lntemational Eateries of 500 feet from a 'Yes 26 available sites for . The ordinance provided America v. Broward residential area adult businesses to reasonable alternative Count, 941 F.2d 1 I57 & 1000 feet relocate, avenues of communication. (1 lth Cir. 1991), cert. from a church City population The adult use business denied, 11'2 S.Ct. 1294 or school gw. ater 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. IR_iTIONALE! TEST o. T-MARC v. Pinellas 400 feet from Yes 123. acceptable sites "The fact that sever-al of the Count, 804 F. Supp. I500 sensitive use or . available. 123 sites might actually be (M.D. Fla. i 992). other adult unavailable or econOmically businesses, unfeasible is of no 1 )'ear consequence." Cou~ found amortization this to be even more than 'period found what was required. reasonable. Janra Enterofises v. Cio of 500 feet from NO 3 available sites This did not provide Ren. o., 818 F. Supp. 1361 sensitive uses, Preliminary Reno= 55 square miles constitutionally sufficient (D: Ney. 1993). and 900.feet injunction alternative means of from businesses. ~m'anied to stop communication. · which hold the city from City conceded that- liquor licenses, enforcing the ordinance was more ordnance, restrictive than necessary. City of National Ci_ty 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 (I993). from other adult miles/5,536 acres, considered by court 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 mail .within an enclosed, ratio of adult businesses to a mall. particular population - 3 permissible 838 P.2d at 848. shopping malls already existed, and more could'be built. O'Malle9 v. City of Yes At least 4% of the city Acceptable alternative Syracuse, 813 F. Supp.' I33 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%. -o ORDINANCEI UPHELD ? STATISTICS IRATIONALF,/.TEST Topan. ga Press, Inc. v. Ci _t)(... 500 feet from NO 11,613.1 acres were Although 1,20 sites for the of Los Angeles, 989 F.2d sensitive uses, definitionally available;102 current adult businesses 1524 (gth ~ir. 1993), as & 1000 feet 7,440.9 acres were initially looks sufficient, amended 19'93 U.S, App. from other adult realistically available whet 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 ~ouped together. A 1,000 foot restriction keeps any other adult uses from locating within a contiguous 72 acres circle around another ad.ult use. Court developed a five . factor test to determine if relocation siies are "realistically available" for adult businesses. The core of the test is that the "property is not potentially available when it is unreason~Ie 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 Ramsev, zoned land was 12 F.3/i 140 (Sth Cir. available. 1994). . CASE NAME IORDINANCEIORDINANCE[STATISTICSUPHELD ? IRATIONALE/TEST o .o · o 11126 Baltimore Blvd. v. 500 or 1,000 Upheld, but then 20% of county is Prince George's County, f~_..t 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 I'onger necessary to decide the issue. Thames Enterprises, Inc. v. '500 feet from . NO ' 1,000 foot restriction struck Cit'v of St. Louis, 851 F. 2d sensitive uses. down. 199 (Sth 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 Hasting, 7401::. 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. I989). i Cit3, of Davtona 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. BelIanca, 452 U.S. 714 (1981). 15192 Thirteen Mile Road, 500 or 1,000 Yes No discussion of inc. v. Ci_ty of Warren, 626 f~-.t relevant numbers. F. Supp. 803 (E.D. Mich. I985). TEST Patel and Patel v. City of Ordinance NO Court found there was no .San Francisc.o., 606 F. re, later 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 sig-nifickntly restricted by the permit."- . extant zoning." p.1260. , On-ell v. Ci_ty of Ho.t 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 wguld (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 altemative Issue was dismissed. County, 392 S.E.2d I65 2 year sites existed. No (S.C. 1990). amortization discussion of percent of total land. Cases Which Supply No StatiStics: CASE NAI~fE IORDINANCEI ORDINANCE · UPHELD? ISTATISTICS IRATIONALE/TEST Young v. American Mini 500/1,000 feet Yes Theatres,, 427 U.S. 50 l:w~m'~n one (1976). adult theatre and any two re~lated uses. Schad v. Borough of excluded all live No Mount Er~hraim, 452 U.S. enter"~inment of 61 (1981). any kind . . MD ri Entertainment v. City of Dallas, 28 F.3d 492 " (Sth Cir. 1994) rL__Q Investments, Inc. v. 750'f~t 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 Valleio v. Adult. Yes reasonable number of sites Books., 167 Cal. App. 3d existed. 1169, 213 .Cal. Rptr. 143 (1985), cert. denied, 475 U.S. 1064 (1986). · Tollis, Inc. v. San 1,000 feet NO Not sufficiently natxow. Bemardino Count, 827 Included all theatres which F.2d 1329 (gth Cir. 1987). showed an adult movie even OrlC~. · Family of St. Paul, Inc. v. 1,320 feet Yes City of St. Paul, Minn., 923 betw~n such -- F.2d 91 (Sth Cir. 199I). fadlifies. Zoning ordinance re~lated the location of .. residential. facilities for the · . mentally retarded or mentally ill. Pre-Renton Cases 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. (Sth Cir. 1982). banned fromS0 to 90 percent of allowed zones2 Purple Onion. Inc. v 500 or 1,000 Pre-Renton Only I0 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 Shoppev. 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 i Pre-Renton 112 mile strip of land F.2d 637 (6th Cir. 1983).[ was available. Bavside Enterprises v. 2,500 feet from NO no data ~ven The zoning ordnance Carson, 450 F. Supp. 696 a school, church.I completely band the (M.D. Fla. 1978) or other adult establishment of new adult use, and 500 businesses. feet from any residential area. .13 ATTACHMENT D Planning Commission Resolution Nos. 3611 and 3612 l0 3.2 3.3 3.4 3.5. !6 RESOLUTION NO. 3611 A RESOLUTION'OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, RECOMMENDING THAT THE CITY COUNCIL ADOPT A NEGATIVE DECLARATION FOR CODE AMENDMENT 98-003 (ORDINANCE NO. 1204) RELATED TO A COMPREHENSIVE SEXUALLY ORIENTED BUSINESS ORDINANCE INCLUDING REQUIRED FINDINGS PURSUANT TO ' THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. The Planning Commission of the City of Tustin finds and resolves as follows: WHEREAS, a permanent sexually oriented business ordinance is considered "a project" to the terms of the California Environmental Quality Act (CEQA); and WHEREAS, an environmental checklist and Negative Declaration were prepared for this project and available for public review; and WHEREAS, the Planning Commission of the City of Tustin has considered evidence presented by the Community Development Director and other interested parties with respect to the subject Negative Declaration; and, WHEREAS, the Planning Commission did on the 24th day of August, 1998, hold a duly noticed public hearing as prescribed by law to consider said ordinance; and, The Planning Commission has evaluated the proposed Negative Declaration and determined that the project is regulatory in nature and therefore, would not have a significant effect on the environment. When individual applications are submitted for consideration, independent environmental review will occur.. 20 21 22 23 24 25 2? 28 NOW, THEREFORE, BE IT RESOLVED by the City of Tustin Planning Commission, as follows:. A) That the above recitations are true and correct. B) That based on the evidence presented at the public_hearing, said Commission adopts the following findings' 1. The Negative Declaration was submitted to the Orange County Clerk and posted for circulation and review on July 24, 1998. 2. The attached Initial Study and Negative Declaration shows that the project will not have a significant impact on the environment (Attachment A). The proposed project is regulatory in nature. As specific site plans l0 3.3. 12 13 3.5 Resolution No. 3612 Page 2 3.? 3. 3.8 are proposed in accordance with these provisions, independent environmental analysis will be conducted. The proposed project involves no potential for adverse effect, either individually or cumulatively, on wildlife resources. As a result, the project qualifies for the DeMinimis Impact exemption from the Department of and Game environmental review fees. The Director of Community Development shall prepare, execute and file a certificate of fee exemption. PASSED AND ADOPTED at a regular meeting of the Tustin Planning Commission, held on the'24th day of August, 1998. ELIZABETH A. BINSACK g Commission Secretary 22 23 24 25 26 IOUS 2"7 28 2O 22 23' 24 25 26 2? 29 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) i, ELIZABETH A. BINSACK the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 3612 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 24th day of August, 1998. Planning Commission Secretary l0 ]? 20 22 24 26 2? 28 RESOLUTION NO. 3612 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF TUSTIN, CALIFORNIA RECOMMENDING THAT THE CITY COUNCIL ADOPT CODE AMENDMENT 98-003 (ORDINANCE NO. 1204) RELATED TO A COMPREHENSIVE SEXUALLY ORIENTED BUSINESS ORDINANCE. The Planning Commission for the City of Tustin finds and resolves as follows: WHEREAS, on February 17, 1998, the City Council adopted Urgency Ordinance No. 1196 regulating sexually oriented businesses. Due to the immediate need to adopt an interim ordinance, time did not allow for the required noticing and public hearing procedures; therefore, Ordinance No. 1196 could only be effective for 45 days. WHEREAS, on March 2, 1998 the Council adopted Ordinance No. 1198 and the required noticing and public hearing procedures were followed; therefore, the interim ordinance could be effective for 10 months and 15 days WHEREAS, a permanent ordinance has been prepared for consideration and hearings before the Planning Commission and City Council, respectively. WHEREAS, pursuant to the provisions of the California Environmental Quality Act (CEQA}, an environmental checklist and Negative Declaration were prepared, and available for public review beginning July 24, 1998; and, WHEREAS, the Planning Commission did on the 24th day of August, 1998, hold a duly noticed public hearing as prescribed by law to consider said request; and, WHEREAS, at said public hearing, upon hearing and considering ali testimony and arguments, if any, of all persons desiring to be heard, said Commission considered all factors relating to Code Amendment 98-003 (Ordinance No. 1204). NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the City of Tustin, as follows: A) That the above recitations are true and correct. B) That based on the evidence presented Commission adopts the following findings: at the public hearing, said 10 11 16 17 18 19 20 21 22 23 24 25 26 2? 28 29 Resolution No. 3612 Page 2 Findings: . Code Amendment 98-003 is consistent with and implements the policies, goals, and objectives of the Tustin Area General Plan. The regulation of sexually oriented businesses will help preserve the existing land use patterns in the City's sound and stable neighborhoods. Specifically this ordinance furthers the goals and policies established in the Land Use Element Goals 1, 3 and 6. . Pursuant to the provisions of the California Environmental Quality Act, an environmental checklist and negative declaration were prepared for the amendment and were'available for public review beginning July 24, 1998. The proposed project is regulatory in nature; as such, no significant impacts are anticipated. When specific site development plans are proposed .in accordance with these provisions, independent environmental analysis will occur. 3. Additional findings are enumerated in "Exhibit A" of this Resolution. NOW, THEREFORE, BE IT RESOLVED that the Planning Commission of the City of Tustin, California, hereby recommends that the City Council approve Code Amendment 98-003 (Ordinance .No. 1204) as identified in the attached Exhibit A. PASSED, APPROVED, AND ADOPTED at a regular meeting of the Planning Commission of the City of Tustin, California held on this 24t~ day of August, 1998. ~TIOUS ELIZABETH A. BINSACK Planning Commission Secretary 14 2O 2! 24 25 2? 28 29 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, ELIZABETH A. BINSACK the undersigned, hereby certify that I am the Planning Commission Secretary of the City of Tustin, California; that Resolution No. 3612 was duly passed and adopted at a regular meeting of the Tustin Planning Commission, held on the 24~ day of August, 1998. Planning Commission Secretary