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Home My WebLink About02 ADULT ORIENTED BUSINESSES 03-02-98NO. 2 3.2-98 DATE: MARCH 2, 1998 Inter-Com TO: FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER COMMUNITY DEVELOPMENT DEPARTMENT URGENCY ORDINANCE NO. 1198 - CONSIDERATION OF THE CITY OF COMPREHENSIVE SEXUALLY ORIENTED BUSINESS ORDINANCE TUSTIN Recommendation: That the City Council adopt Urgency Ordinance No. 1198 by a 4/5ths vote. Fiscal Impact: There are no direct fiscal impacts associated with the Council's adoption of this urgency ordinance. If a sexually oriented business is established within the City, there will be an increased demand for Police and Code Enforcement Services. These costs will be off-set through the annual permit fees Background: 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. The required noticing and public hearing procedures were followed for Ordinance No. 1198; therefore, the interim ordinance can be effective for 10 months and 15 days. During the interim effect of the ordinance, staff will prepare a permanent ordinance for consideration and hearings before the Planning Commission and City Council, respectively. 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 are permitted in the City's traditional commercial zoning districts surrounded by sensitive uses. Conditional use permits and/or modified conditional use permits are required for sexually oriented businesses to locate in the City, but no standards of operation (i.e. security, lighting, licensing, etc.) are identified. A revision to these sections was being prepared along with a comprehensive zoning code Urgency Ord. No. 1198 March 2, 1998: Page 2 revision. However, facts have come to our attention that necessitate a' more prompt revision to the sections on sexually oriented businesses. Recently, the Community Development Department has received a number of inquiries to establish sexually oriented businesses within the City. It is difficult to ascertain whether or not these inquiries are legitimate or opportunities for those so inclined to file lawsuits. Due to the increased interest in locating these uses within the City and the lack of adequate processing or operating standards, staff has prepared this urgency ordinance. Unlike other land uses, sexually oriented businesses may not be subjected to a moratorium. As noted in the Draft Ordinance, the City Council must find that the lack of appropriate development and location standards of adult type uses poses an immediate threat to the public health, safety, and welfare: 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, Adzona (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, Califomia (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 ~econdary 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 '!986 State of Minnesota Attorney General's Working Group Report, the combination of multiple adult use businesses within one building or in' close proximity compounds the secondary effects associated with a single adult business. Consequently, it is appropriate to regulate the secondary impacts of these businesses without regulating the content or the communicative elements of the businesses themselves. Studies to be Undertaken By the City During the Effect of the Urgency Ordinance During the effect of this interim ordinance, the City will continue to conduct studies, surveys and questionnaires of real estate appraisers, businesses owners, residential owners, and parents in Tustin; and, continue to collect various studies and ordinances pertaining to the secondary effects that adult businesses prodUce. Urgency Ord. No. 1198 March 2, 1998: Page 3 Common Issues and Questions The following is a summary of the issues and commonly asked questions associated with establishing regulations for sexually oriented business and the associated secondary effects. These issues and questions include: Why is the City compelled to adopt an urgency 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 Odented 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 off-set to license and monitor these premises? V Why is the City compelled to adopt an urgency sexually oriented business ordinance. The City of Tustin has not comprehensively updated its ordinance since 1985 and inquiries have been made by operators to locate in Tustin. Several Court decisions pertaining to this area of the law have been issued since t985 (Attachment B). Under the current ordinance, the City uses a modified conditional use permit process to control Sexually Oriented Businesses, and there are no operational restrictions (i.e. hours of operation, lighting, security, licensing of employees, etc..) In 1993, the Federal Distdct 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. Recently, the City and adjacent jurisdictions have received inquiries in this regard. Urgency Ord. No. 1198 March 2, 1998: Page 4 Approaches by Other Jurisdictions Detroit: Young v. American Mini-Theaters In 1976, the U.S. Supreme Court rUled on a City of Detroit ordinance which was designed to separate adult businesses from each other, and more particularly, from certain regulated or sensitive uses. The Detroit ordinance was upheld based on a study the City had conducted which found that adult businesses tended to degrade an 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 ~econdary effects"and found that the distancing requirements were not per se unconstitutional. Consequently, one approach jurisdictions have taken is that if adult businesses must be permitted in the City, then it is important to ensure that they are separated from sensitive uses such as residences, schools, churches, etc. Renton v. Playtime Theaters Another approach used by the City of Renton, Washington, was the setting aside of a place or places in town where these businesses would be permitted. The Renton Ordinance was upheld by the Supreme Court in 1986, City of Renton v. Playtime Theaters, as a content- neutral time, place, and manner ordinance. The City of Renton determined that it was more appropriate to concentrate these uses in a particular section or sections of town where they were clearly separated from other sensitive uses and where the City could more appropriately target its resources to ensure that the secondary effects of these businesses did not spread. In other words, the City of Renton determined that if they must have such uses, they would set aside a certain portion of the town for the uses wherein they could "keep an eye" on them.. Combination of Renton and Detroit A number of cities, more recently, have attempted to combine the separation established by the Detroit case with the separation from other sensitive uses and other businesses upheld 'in Renton. In this way, the secondary effects are regulated by disbursing them throughout various zoning districts and then separating any adult businesses which may come into existence from other adult businesses to avoid the combination of secondary effects. This manner of regulation of adult businesses is generally acceptable so long as an adequate number of sites are available within the City for these businesses to operate. While various courts in California have ruled that 4 - 6 sites are not sufficient as a matter of law, the courts have not established a formula or clear guidance on the number of sites that must be available. Can the City Ban Sexually Oriented Businesses No. The United States Supreme Court has ruled that certain sexually oriented businesses are forms of ~peech"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 Urgency Ord. No. 1198 March 2, 1998: Page 5 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 bontent neutral"with respect to time, place, and manner and focus on reducing the '~econdary effects" of adult businesses while pro~,iding "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 ('gin 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 Anqeles, (1987) 237 Cal. 346). Accordingly, such businesses may not be singled out. How will the cost be off-set to license and monitor these premises? While the City may not apply a discriminatory tax on adult businesses, it may approve fees that are reasonably related to issuance of permits and monitoring of the business. There will be higher inspection and monitoring costs for these activities and the courts have recognized that these fees are appropriate to impose if they are reasonably related to the City's costs. (Genesa v. Peoria 619 F2d 1202; Bayside Enterprise v. Carson 470 F. Supp 140). What constitutes enough sites? As indicated, neither the U.S. Supreme Court nor the California Supreme Court has determined or defined what constitutes an adequate number of sites for any jurisdiction. However, the courts have identified when there are not enough areas - See Attachment B. In the Renton case, the community's ordinance allowing such' uses in specific zones was upheld. Renton had a population of 32,000, and set aside 520 acres (five percent of the total land area). In Cox v. Stanton 255 Cai Rptr.2d 682, the city was held to not have allowed adequate sites for adult uses. Stanton has a population of approximately 32,500. The City had set aside 5 percent of its areas for such uses, but required a 1,000 foot separation between adult uses which further limited available sites.. 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 Urgency Ord. No. 1198 March 2, 1998: Page 6 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 attached Ordinance uses a combination of the Renton and Detroit approaches,, by locating these uses in zoning districts away from sensitive uses and providing distancing between sexually oriented businesses: The complete draft ordinance with appropriate findingS are attached (Attachment A). The list below highlights the major provisions of the Urgency ordinance. The ordinance establishes that the purpose and intent of the proposed ordinance is to regulate sexually odented businesses to reduce the related secondary negative impacts while preserving the First Amendment rights to locate these uses within the City. · The ordinance comprehensively defines those uses that constitute sexually oriented businesses; The ordinance establishes the PCMU, PC-C, PCC, M, and PC-IND zoning districts as permitted areas where these uses may locate. Approximately 400 acres or nine percent (9%) of the City's area would be available for such uses. The City'S area excludes MCAS, Tustin and public right-of-way areas. In our opinion, this is a reasonable number of acres/sites. · A minimum distance of 500 linear feet must be provided from residential, church, park, schools, and other similar sensitive uses. 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 .point of one business to another must be maintained. · Based on the allowable zoning and distance requirements, there are approximately 150 available sites. In our opinion, this is an adequate number of sites. · The Ordinance establishes advertising, lighting, security, and operational requirements. · Businesses would be prohibited from operating between the hours of 12:00 a.m. and 9:00 a.m. · Background investigations on the owners and employees of sexually oriented businesses would be required. Employees will be separately licensed. · The ordinance requires 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 the permits. The annual fee will offSet personnel costs for City staff to inspect the premises and enforce the provisions of the ordinance. Urgency Ord. No. 1198 March 2, 1998: Page 7 The City Attorney has reviewed and approved the content and form of the proposed ordinance. State Code Requirements: The City Council has the authority to adopt an intedm urgency ordinance if the Coundl finds there is an urgent need to protect the public health, safety and welfare. The facts constituting the urgency are set forth in this staff report and in the ordinance. Urgency ordinances require a 4/5ths vote of the City Council and are effective immediately. Environmental Determination: Ordinance No. 1198 either provides for the amendment of existing regulations applicable to Sexually Oriented Businesses or, for the first time, provides for zoning regulations which are specifically applicable to Sexually Oriented Business uses. Such uses are allowed under the City's existing zoning regulations. Therefore, it can be seen with certainty that there is no possibility that this ordinance may have a'significant adverse effect on the environment, and therefore the adoption of this ordinance is exempt from CEQA pursuant to Section 15061 (b) (3) of the CEQA guidelines. Elizabeth A. Binsack Community Development Director Attachments: A. Draft Urgency Ordinance No. 1198 B. 'Case Studies - Due to the voluminous nature of these studies, . these documents are available for review in the Community Development Department; however, a summary of leading pre- and post- Renton cases is attached hereto. eab\ccreports\l 198sob. doc ATTACHMENT A Draft Urgency Ordinance No' 1198 ORDINANCE NO. 1198 AN INTERIM 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. (PREVIOUS ORDINANCE NO. 1196) The City Council of the City of Tustin does hereby ordain as follows: SECTION 1 FINDINGS The City Council finds as follows: h. That pursuant to California Government Code Section 65858, the City Council finds and determines that a current and immediate threat to the public health, safety, peace, and welfare exists which necessitates the immediate enactment of this Ordinance for the immediate 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. In the meantime, within the past month, 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 immediate 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 during the period of this interim'ordinance, the city will continue to conduct studies, surveys and questionnaires of real estate appraisers, businesses owners, residential owners, and parents in Tustin; and D. That from review, of other cities' studies there is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on Ordinance No. 1198 Page 2 Eo F, Ko existing businesses and the surrOunding residential areas adjacent to sexually oriented businesses, causing increased crime and downgrading of property values; and, That it is recognized that sexually oriented businesses, due to their nature, have serious 'objectionable operational characteristics, particularly when they are operating in close proximity to each other, thereby contributing to crime, lower property values, urban blight and downgrading of the quality of life in adjacent areas; and 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, is a legitimate health concern which demands the reasonable regulations of sexually oriented business to protect the health and well being of the citizens; and Lo That: (a) areas within close walking distance of single and multiple family dwellings should be free of sexually oriented business uses; (b) 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, (f) no evidence has been presented to show that location of sexually oriented businesses within the City will improve the commercial viability or quality of life of the community; and 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 'the adverse secondary effects which accompany these operations; and That it is desirable to minimize and. control the adverse secondary effects described in the studies and delineated in findings D-I 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, That United States Supreme Court decisions regarding local regulation of sexuallY oriented businesses, including but not limited to, Young v. American Mini-Theaters, Inc.', 427 U.S. 50 (1976) reh. denied 429 U.S. 873; Renton v. Playtime 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 Ordinance No. 1198 Page 3 Theater, 501 U.S. 560 (1991); and City of National City v. Wiener, et al, 3 Cal.'4th 832 (1993). Topanga Press, Inc., et al v. City of Los Angeles, 939 F. 2d 1524 (1993) have been considered in the adoption of this ordinance; 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 ordinance which addresses the adverse secondary effects of sexually oriented businesses; and P. That 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 live entertainment presented by some sexually oriented business establishments involves a considerable amount of bodily contact between patrons and performers, including physical contact while giving and receiving gratuities, including hugging, kissing and sexual fondling of performers and patrons and that such activity often facilitates unhealthful sexual conduct and prostitution; 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 (9th Cir. 1986) (six feet); Kev, Inc. v Kitsap.County, 793 F.2d 1091' (9th 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 contact including sexual contact, and, an Orange County Superior Court upheld such actions by the City of Newport Beach; and S. That preventing prostitution and the spread of sexually transmitted diseases are within the City's police powers. 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 t° performers by patrons are reasonable and effective means of addressing these legitimate governmental interests. T. That it is not the Council's intent to place any impermissible burden on any constitutionally protected expression or expressive conduct by the enactment or enforcement of such regulations. U. That this ordinance either provides for the amendment of existing regulations applicable to Sexually Oriented Businesses or, for the first time, provides for zoning regulations which are specifically applicable to Sexually Oriented Business uses. Such uses are allowed under the 3 Ordinance No. 1198 Page 4 City's existing zoning regulations. Therefore, it can be seen with certainty that there is no possibility that this ordinance may have a significant adverse effect on the environment, and therefore the adoption of this ordinance is exempt from CEQA pursuant to Section 15061 (b) (3) of the CEQA guidelines; and V. That this ordinance furthers the goals and policies established in the Tustin Area General Plan including but not limited to Land Use Element Goals 1, 3 & 6. NOW THEREFORE, the City Council of the City of Tustin does ordain as follows: SECTION 2. PURPOSE~ The purpose of this Ordinance is to establish reasonable time, place and manner regulations for sexually oriented businesses within the legal framework of the First Amendment to protect the health, safety and general welfare of the citizens of the City of Tustin by establishing reasonable, uniform and content neutral regulations to prevent the deleterious location and concentration of sexually oriented businesses within the City, to prevent the unsafe and unhealthful operations of such businesses thereby reducing or eliminating the adverse secondary effects from such sexually oriented businesses. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials or activities, including sexually oriented materials or activities. SECTION 3. DEFINITIONS. For the purposes of this ordinance, certain terms and words are defined as follows: A. "Sexually oriented businesses" are those businesses defined as follows: o '~dult 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. '~dult Bookstore," 'g, dult Novelty Store," or 'g, dult 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 advertising to the sale, rental for any form of consideration, of any one or more of the following: ao 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 %pecific sexual activities" or "specified anatomical areas"; Ordinance No. 1198 Page 5 o o o o o b° 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 '~pecified sexual activities" or %pecified 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 from 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 '~pecified anatomical areas" or "spe.cified sexual activities." '~dult cabaret" means a nightclub, bar, restaurant 'bottle club", juice bar or similar commercial establishment, whether or not alcoh61ic 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'~pecified anatomical areas" or by %pecified sexual activities", or 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". 'g, dult motel" means a motel, hotel or similar commercial establishment which: (a) .offers 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 '~pecified sexual activities" or '§pecified.anatomical areas"' and. which advertises the availability of this sexually oriented type of material by means of a sign visible from 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) offers a sleeping room for rent for a period of time less than ten (10) hours; or, (c) allows a tenant or occupant to sub-rent the sleeping room for a time period of less than ten (10) hours. '~dult motion picture theater" means a commercial establishment where films, motion pictures, video cassettes, slides or similar photographic 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. '~dult 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). '~dult tanning salon or parlor" shall mean a business establishment where: patrons receive tanning services in groups of two (2) or more and where patrons or employees Ordinance No. 1198 Page 6 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. . '~dult 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 as 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. The definition of sexually oriented businesses 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. B. '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. C. '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. D. 'Operator" means and includes the owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises. Ordinance No. 1198 Page 7 E. 'Permitted or Licensed Premises" means any premises that requires a license and/or permit and is classified as a sexually oriented business. F, "Perrnittee 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. G. 'Person" means an individual, proprietorship, partnership, .corporation, association or other legal entity. Ho '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 '¥ecreation 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, basketbali 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. Jo 'Religious institution" means any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities. Ko 'Residential district or use" means, property zoned for residential uses or occupied with attached and detached single family residences, duplexes, townhouses, multiple family residences, mobile parks, patio homes, apartments, condominiums, stock cooperative projects, and planned developments. Lo '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. M. '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. N. '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. O. "Specified anatomical areas" means and includes any of the following: Ordinance No. 1198 Page 8 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 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. Po 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), (b), (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. Q. '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; 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. R. '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 exists on February 17, 1998. S. '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. Ordinance No. 1198 Page 9 SECTION 4. PERMITTED LOCATIONS OF SEXUALLY ORIENTED BUSINESSES. A. The establishment of a sexually oriented business shall be permitted only in the sl~ecified 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. Bo 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: (2) 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. 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 c. any residential district or use d. a public park e. a public building f. a boy's club, girls' club, or similar existing youth organization (3) 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. (4) 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. (5) 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:. by a proprietary school, licensed by the State of California; a college, junior college or university supported entirely or partly by taxation; Ordinance No. 1198 Page 10 b. 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. 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. B. 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 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". C. 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 '~xisting" 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 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 OR1ENTED BUSINESSES. mo Any sexually oriented businesses lawfully operating on February 17, 1998, that are 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 initial 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 10 Ordinance No. 1198 Page 11 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. B, 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. C, 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 is subject to a civil suit for injunction and criminal prosecution. A misdemeanor is punishable by a fine of $1,000.00 and/or thirty (30) days imprisonment. If an injunction must be sought, attorneys fees and costs will be assessed at the discretion of the Court against the sexually oriented business. SECTION 8. PERMIT REQUIRED. A. Except as provided in Section 6, no person shall establish a'sexually oriented business without a valid sexually oriented business permit issued by the City. 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, all other applicable zoning laws and/or regulations now in effect or as amended or enacted subsequent to the effective date of this Ordinance. C. 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. 11 Ordinance No. 1198 Page 12 D. 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 applicable statutes and ordinances. Eo 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. F. 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 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. o 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 from 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 partnership 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 th~ date of denial, suspension or revocation. 12 Ordinance No. 1198 Page 13 o 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 from another city or county and, .if so, the names and locations of such other permitted businesses. 6. A detailed description of the proposed entertainment, services, and/or use. , The location of the proposed sexually oriented business, the property, street address, and telephone number(s). including a legal description of 8. 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. 10.'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. . · 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 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 permit 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. Go 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 13 Ordinance No. 1198 Page 14 file with the Community Development Director or his/her designee shall be grounds for suspension of a permit. Ho 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 opportunity 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. K, 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 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. A. 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. Said investigation shall be completed within thirty (30) days of receipt of the application. At the conclusion of its investigation, each responsible department .or agency shall recommend approval, conditional approval, or disapproval of the application. 14 Ordinance No. 1198 Page 15 If a department or agency recommends disapproval or conditional approval, the reasons therefore shall be stated. B. A department or agency shall recommend disapproval of an application if it finds that the proposed sexually oriented business will be in. violation of any provision of any statute, code, ordinance, regulation or other law in effect in the City, including this ordinance. SECTION 10. ISSUANCE OF PERMIT/CONDITIONAL GRANT. A. The Community Development Director °r designee, shall grant, grant upon condition, or deny an application for a permit within thirty (30) days from the date the application is deemed complete. The applicant shall be notified by the Community Development Director 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 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.i. Such conditional grant shall not constitute a vested fight to operate under the permit, and the permit may be denied if disqualifying information, as specified in Section 10.i. is received by the City. B. Grant of Application for Permit , 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. C. Denial of Application for Permit 1. The Community Development Director or designee, shall deny the application for any of the following reasons: a. An applicant is under eighteen years of age. b. 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. c. An applicant has failed to provide required information in the application or has provided false or misleading information in the application. d. 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 15 Ordinance No. 1198 Page 16 eo go 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 O~'dinance 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. 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'~pecified 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. k. '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 fight 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. 16 Ordinance No. 1198 Page 17 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. SECTION 12. INSPECTION. A. 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. B. 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 from the date of issuance and may be renewed only by making application as provided in Section 1'0 (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. B. 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 from 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 thirty (30) days if the Director determines that a permittee, or an employee of a permittee, has: 1. Violated or is not in compliance with any section of this Ordinance; or 17 Ordinance No. 1198 Page 18 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 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 6. 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 permittee of the suspension; or 7. Operated the sexually oriented business in violation of the hoUrs of operation set forth in Section 22; or 8. 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 '§pecified 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 18 Ordinance No. 1198 Page 19 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. SECTION 15. NOTICE AND HEARING ON PROPOSED SUSPENSION/REVOCATION Ao 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, return 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. Heatings 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. B. 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. A. 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. B. 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 19 Ordinance No. 1198 Page 2o m. g. continuance(s) has been granted. Action by the City Council is final. The applicant or 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. C. 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. A. 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. B. 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. D. 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. 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; 20 Ordinance No. 1198 Page 21 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. 11. Whether the applicant has been convicted of a '~pecified 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 ten (10) days from the date the completed application is filed. Atler 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 true: 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 '~pecified 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. C. Renewal of License: . A license granted pursuant to this Section shall be subject to annual renewal by the Community 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 21 Ordinance No. 1198 Page 22 criminal act as defined in this Ordinance within the last five (5) years or the applicant Bas 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 of a fee in the amount of $40.00 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. A. 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 fitty (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. 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. 22 Ordinance No. 1198 Page 23 , 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. Rest rooms 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. o It shall be the duty of the owfiers 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. o The premises shall be' equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access and an illumination 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: A. 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; 23 Ordinance No. 1198 Page 24 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. m. g. ADVERTISING AND LIGHTING REGULATIONS. 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. 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 Eo¸ Fo 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. 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. The regulations contained in this section apply regardless of whether a person has a valid permit under this ordinance. 24 Ordinance No. 1198 Page 25 SECTION 22. HOURS OF OPERATION. These regulations apply regardless of whether a person has a valid permit under this ordinance. A. 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. B. 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 performs, 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. 'g. ccessible 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. A. 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 '§pecified anatomical · areas" or by "specified sexual activities". 25 Ordinance No. 1198 Page 26 B. 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. C. D. 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. Eo 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. F.' Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between performers and patrons required by this section. G. 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. H, No operator of a sexually oriented business establishment shall cause or allow a performer to contract or engage in any entertainment such as a 't:ouch" or a '§traddle" dance with a patron while in or on the establishment premises. No performer shall contract to or engage in a 'touch" or '~straddle" dance with a patron while in or on the establishment premises. For purposes of this subsection, 't:ouch" or '§traddle" 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 '~pecified anatomical area'; or any '§pecified 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. J. Compliance with this section: 26 Ordinance No. 1198 Page 27 1. 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 estabIishment 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. o The operator of an existing sexually oriented business operating under a valid permit who wishes to provide 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. , Subsection B shall become effective sixty (60) days from the effective date of this ordinance. o Subsection C shall become effective ninety (90) days from the effective date of this ordinance. o 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. o 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. 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. 27 Ordinance No. 1198 Page 28 B. 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. mo 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. Bo 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. C. 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. D. 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. 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 of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City 28 Ordinance No. 1198 Page 29 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. SECTION 30 This ordinance is an Interim Ordinance, enacted pursuant to Government Code Section 65858(b). The term of the Interim Ordinance shall be for a period of 45 days from the date of adoption, unless legally eXtended in accordance with law by action of the City Council. SECTION 32 This ordinance shall be adopted by a four-fifths (4/5) vote of the City Council and shall be effective immediately upon such Vote. PASSED, APPROVED, ADOPTED by the City Council of the City of Tustin at a regular meeting held on the 17t~ day of February 1998. JEFFERY M. THOMAS, MAYOR PAMELA STOKER CITY CLERK EAB:kbm~ordinanc\l 19g. sob STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF TUSTIN CERTIFICATION FOR ORDINANCE NO. 1196 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 Interim Ordinance was passed and adopted at a regular meeting of the City Council held on the 2nd day of March 1998, by the following vote: COUNC]LPERSONS 'AYES: COUNCILPERSONS NOES: COUNCILPERSONS AB sTAINED: COUNCILPERSONS ABSENT: Pamela Stoker, City Clerk 29 ATTACHMENT B Case Studies- Due to the voluminous nature of these studies, these documents are available for review in the Community Development Department. A .summary of 'leading pre- and post- Renton cases is' attached hereto. Post-Renton Cases Discussing Alternative Avenues of Communication for Sexually Oriented Businesses. CASE NAME ORDINANCE ORDINANCE STATISTICS RATIONALE/TEST UPHELD ? Renton v. Playtime.. 1,000'feet from Yes Pop: 32,000 The ordinance must be Theatres, sensitive uses, Available land: 520 "designed to serve a 475 U.S. 41 (1986). and within one acres, which =s 5% of substantial governmental mile of a school total land. interest and [must allow] for reasonable alternative avenues of communication.." Function Junction, Inc. v.. 400 feet from Yes A city official testifiedWithout evaluating City of Daytona Beach~ 705 sensitive uses & that 8 adult uses could exactly how much land is F. Supp. 544 (M.D. Fla. 1,000 feet from located on the 12 enough, the court found the 1987). another adult available sites, ordinance was reasonable. business 12 sites were available. "While a city may limit alternative avenues of communication, it may not limit them 'unreasonably,' and 'what is reasonable cannot be ascertained by ~ reference to nothing except the wishes of the nude bar proprietors.'" 705 F. Supp. at 552 (quoting International Food & Beverage Systems, 794 F.2d at 1526). S & G News, Inc. v. City 1,000 ft of Yes 2.3% of total land was "Southgate clearly allows of Southgate, 638 F. Supp. another adult available for adult sufficient alternative means 1060 (E.D. Mich. 1986), business or uses. City population: of expression, since adult aff'd without published within 500 ft of' 30,647 City land: uses are allowed in... 2.3 opinion, 819 F.2d 1142. a residential 4,400 acres of land (or per cent of the land in (6th Cir. 1987). dwelling 6.9 square miles). Southgate." 638 F. Supp" at 1066. Intemational. Food& 750 feet from Yes City has 31 square Ordinances may ban Beverage Systems v. City sensitive uses or miles and population establishments completely of Fort Lauderdale, 794 other adult of 156,.000. which sell alcohol and F.2d 1526 (1986), on businesses -More than I0, adult, provide nude entertainment, remand to, 664 F. Supp. bars were in existence, so this ordinance which 482 (S.D. Fla. 1987), afl'd, -22 to 25 available merely adds time, place and 838 F.2d 1220 (l lth Cir. sites (I0 of ~vhich manner restrictions is OK. 1988). wer~ locations where "We are at a loss how [the adult uses already distriCt judge] could existed). 'determine as many as 22 sites for such bars were not enough..." The city may restrict businesses, just not unreasonably. County of Cook v. Ordinance Yes Total County land: This was reasonable even Renaissance Arcade & restricts adult 190.59 square though available land was in Bookstore, 522 N.E.2d 73 uses to 78 miles, undesirable industrial area ( Ill. 1988). industrially 10.8 square miles was where water and sewer were zoned areas, and permissible for adult inaccessible. in 245 businesses, which was commercially 5.7 percent of total zoned areas, land or 8.9 percent if No more than the Cook County 2 adult Forest Preserve was businesses excluded. within 1,000 foot radius. Walnut Properties. v. City 1,000 feet of NO-- held adult 99.5 acres were Court said that the 1,000 foot of Whittier, 861 F.2d 1102 another adult businesses were available, which was barrier between adult (9th Cir. 1988), cert. business, effectively 1.4% of the land. businesses was what denied 490 U.S. 1086 precluded, distinguished this case from (1989). Renton. Total acreage available doesn't matter because the 1,000 foot barrier imposes a 72 acre buffer around each adult business. Ordinance would require the only adult theatre in town to close with no definite prospect for a location to relocate, this denies reasonable opportunity to operate an adult business. City of Stanton v. Cox, 255 500 feet from NO City consisted of 3.5 Given the City's relatively Cal. Rptr. 682 (Cal. Ct. sensitive uses, square miles. City small geographic size, the App. 1989). and 1,000 feet estimated 5% of area double restriction in the from another would be available, but ordinance (1,000 feet adult business when consider the between adult bus:,nesses & 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 o/~ the City. permissible land The Court reported that would be even less. other courts have frequently found that the 1,000 foot :. separation requirement between adult businesses fails to leave adequate opportunity for adult businesses to operate. Bonnell, Inc. v. Board of 5 year Yes 44 locations available Adequate alternative Adjustment, 791 P.2d 107 amortization, totaling 1,I00 acres, locations available. (Okla. Ct. App. 1989). .[ CASE NAME Town of Islip v. Cay;gl;a, 73 N.Y.2d 544, 540 N.E.2d 215 (1989). '~DJ, Inc. v. City of. Houston, 636 F. Supp. 1359 (S.D. Tex. 1986), afl'd, 837 F.2d 1268 (5th Cir. 1988), cert. denied, 489 U.S. 1052 (1989). Southern Entertainment. Co. of Florida, Inc. v. Ci~ of Boynton Beach, 736 F. Supp. 1094 (S.D. Fla. - 1990). Dumas v. Ci_ty of Dallas., 648 F. Supp.. 1061 (N.D. Tex.), aff'd sub. nom. FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988), rev'd on other grounds, 493 U.S. 215 (1990) Brookpark News & Books, Inc. v. City_ of Cleveland, 585 N.E. 2d 908 (Ohio Ct. App. 1990). Alexander v. City of Minneapolis, 928 F.2d 278 (Sth Cir. 1991) UPHELD ? .J. Must be in industrial zones, and further than 500 feet from sensitive uses ~ feet, and 1,000 feet from another adult business 1,000 feet from sensitive uses and other SOBs 1,000 feet 3 year amortization 1,000 feet from sensitive uses or from any other adult businesses. "~es Yes Ordinance content was found valid, but ordinance deemed void for failure to comply with statutory procedural rules Yes Yes New ordinance restricting adult businesses to one particular district. Adult businesses could locate on over 6,000 acres; including 85.6 miles of running frontage on open roads. Town = 92 sq. miles Population= 300,000 ~ specific statistics given. Court stated generally that "hundreds" of sites were available. Alternative aVenues of expression w6re available. The total number of adult businesses would not decrease. Adequate alternative sites were available. To be available the "sites need not be commercially viable." 837 F.2d at 1277. City population: 45,000 City land: 15.75 square miles. 11 sites available for adult businesses, or 3.25 % of total land.. 8 to 10 percent (21,000 acres) of city land was available. Fact that 6 of the 11 sites were currently unavailable was not a relevant factor. 11 sites was found adequate. Procedural rules were violated when ordinance was enacted. , Alternative sites do not need to be practically or commercially viable. 3.6 acres out of a total of 48,384 acres were available for adult uses (.00007% of total). Available lafld: 120 sites or 6.6% of total land. ' This percentage of available land is "unduly restrictive and significantly curtails freedom of expression and access to protected speech." 585 N.E.2d at 911. This provided an adequate number of alternative sites. .'% Woodall v. City of E1 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 consideration land with modified, 959 F.2d 1305 jury under new 1,165 acres, which is physical characteristics (5th Cir. 1992) (per test of what land 1% of E1 Paso's making it unavailable for any curiam), cert. denied, 113 is to be 158,000 acres. All 39 type of development, and S.Ct. 304 (1992). considered of the existing adult land with legal characteristics available, businesses were making it unavailable for required to relocate, adult businesses. Lakeland Lounge 'v. City of Yes 4 locations with 8 to The definition of "available" Jackson, 973 F.2d 1255 10 sites were available does no mean the adult (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 substantial 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 Jackson, so it does not limit expression." D.G. Restaurant v. City of 500 feet Yes 26 potential sites, adult businesses' argument Myrtle Beach, 953 F.2d that the available sites were in 140 (4th Cir. 1992). poorly lit industrial areas, far from tourists was rejected by the court. The businesses could still "convey the message to those looking for such enliohtenment. International Eateries of 500 feet from a Yes 26 available ~ites for The ordinance provided America v. Broward residential area adult businesses to reasonable alternative County, 941 F.2d 1157 & 1000 feet relocate. . avenues of communication. (1 lth Cir. 1991), cert. from a church . City population The adult use business denied, 112 S.Ct. 1294 or school greater than I 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 199 I. -~-MARC v. Pinellas. County, 804 F. Supp. 1500 (M.D. Fla. 1992). Janra Enterprises v. City_ of Reno., 818 F. Supp. 1361 (D. Nev. 1993). City of National City_ v: Wiener, 838 P.2d 223 (Cal. 1992), cert. denied, 114 S.Ct. 85 (1993). O'Malley v. City of.. Syracuse, 813 F. Supp. 133 (N.D.N.Y. 1993). ORDINANCE [ O~ STATIC;TICS uvi-mI r ? I 400 feet from sensitive use or other adult businesses. 1 year amortization period found reasonable.' 500 feet from sensitive uses, and 900 feet from businesses which hold liquor licenses. 1,000 feet from a residential area and 1,500 feet from other adult businesses, schools, or public parks. -- unless within an enclosed mall. RATIONALE/TEST Yes NO Preliminary injunction granted to stop the city from enforcing the ordinance. Yes Yes 123 acceptable sites available. 3 available sites Reno= 55 square miles City population: 57,000 Total land: 8.65 sq. miles/5,536 acres. Adult businesses could locate anywhere' in the 572 acres (10%), which are commercially zoned, within an enclosed mall. 3 permissible shopping malls already existed, and more could be built. At least 4% of the city was available for adult uses, and if added to that partial lots or lots that didn't front roadways, the percentage rises to more than 5%. "The fact that several of the 123 sites might actually be unavailable or economically unfeasible is of no consequence." Court found this to be even more than what was required. This did not provide constitutionally sufficient alternative means of communication. City conceded that ordinance was more restrictive than necessary. Assertion that shopping centers do not usually rent to adult businesses was not considered by court because the government is not responsible for private business decisions. Court found "no authority that mandates a constitutional ratio of adult businesses to a particular population figure." 838 P.2d at 848.. Acceptable alternative locations. STATISTICS CASE NAME ' RATIONALE/TEST IORDINANCE [ ORDINANCE UPHELD ? I Topanga Press, Inc. v. City 500 feet from NO 11,613.1 acres were Although 120 sites for the of Los Angeles,, 989 F.2d sensitive uses, definitionally available;102 current adult businesses 1524 (9th Cir. 1993), as & 1000 feet 7,440.9 acres were initially looks sufficient, amended 1993 U.S. App. from other adult realistically available when the 1,000 foot LEXIS 9423, cert. denied, businesses, for adult businesses, restriction between adult 114 S.Ct. 1537 (1994). holding approximately businesses is computed this 120 sites, would severely limit the 102 adult businesses actual number of sites existed at time of available because much of decision, the land permissible for adult businesses was grouped together. A 1,000 foot restriction keeps any other adult uses from locating within a contigx~ous 72 acres circle around another adult use. Court developed a five factor test to determine if relocation sites are "realistically available" for adult businesses. The core of the test is that the "property is not potentially available when it is unreasonable to believe that it would ever become available to any commercial enterprise." p. 1531. Holmberg v. City of 1,000 feet Yes 35% of commercially Ramse_y_, zoned land was 12 F.3d 140 (Sth Cir. available. 1994). . Cases Which Supply No Statistics: CASE NAME Young v. American Mini Theatres_, 427 U.S. 50 (1976). gchad v. Borough of Mount Ephraim, 452 U.S. 61 (1981). MD II Entertainment v.. City of Dallas, 28 F.3d 492 (5th Cir. 1994) ILQ Investments, Inc. v. Ci_ty of Rochester, 25 F.3d 1413 (8th Cir. 1994). Ci'---_~ of Vallejo v. Adult, Books, 167 Cal. App. 3d 1169, 213 Cal. Rptr. 143 (1985), cert. denied, 475 U.S. 1064 (1986). Tollis, Inc. v. San.. Bemardino County, 827 F.2d 1329 (9th Cir. 1987). Family of St. Paul, Inc. v~. City of St. Paul, Minn., 923 F.2d 91 (8th Cir. 1991). ORDINANCE [ORDINANCE UPHELD? 500/1,000 feet between one adult theatre and any two re___gulated uses. excluded all live entertainment of any.._.__.hnd 750 feet 1,000 feet 1,320 feet between such facilities. Zoning ordinance regulated the location of residential facilities for the mentally retarded or mentally ill. -~es ~No Yes Yes -NO Yes STATISTICS City population: 75,000 VRATIONALE/TEST Alternative sites was not at issue, instead issue was over whether the statute was unconstitutionally overbroad - and not content neutral. reasonable number of sites existed. Not sufficiently narrow. Included all' theatres which showed an adult movie even once. CASE NAME I ORDINANCE ORDINANCE! UPHELD ? STATISTICS RATIONALE/TEST 11126 Baltimore Blvd. v. 500 or 1,000 Upheld, but then 20% of county is Prince George's County, feet Supreme Court residential (no adult 886 F.2d 1415, vacated vacated and uses). and remanded without remanded 20 sites, constituting comment, 496 U.S. 901, without 1,400 acres, were 924 F.2d 557 (4th Cir. comment, found to be 1991). 4th Circuit permissible. Court of 6% of 22,500 acres in Appeals decided county were zoned for because the commercial and County rewrote industrial use. the ordinance, it was no longer necessary to decide the issue. Thames Enterprises, Inc. v. 500 feet from NO 1,000 foot restriction struck City of St. Louis,, 851 F. 2d sensitive uses. down. 199 (8th Cir. 1988). 1,000 feet of another adult business unless can obtain a waiver from neighbors. Cornerstone Bible Church time, place and Yes 45% of land was v. Ci_ty of Hastings, 740 F. manner available. Supp. 654 (D. Minn. restriction on 1990). location of a church United States Partners 1,000 feet Yes No pertinent Financial Corp. v. Kansas, information. City, 707 F. Supp. 1090 (W.D. Mo. 1989). City of Daytona Beach v. Laws banned Yes Del Percio, 476 So.2d 197 nudity in places (Fla. 1985). where 'alcohol was sold. New York State Liquor ~ Authority v. Bellanca, 452 U.S. 714 (1981). 15192 Thirteen Mile Road~ 500 or 1,000 Yes No discussion of Inc. v. City of Warren, 626 feet relevant numbers. F. Supp. 8.03 (E.D. Mich. 1985). Patel and Patel v. City_ of Ordinance NO Court found there was no San Francisco, 606 F. regulated motels evidence adult motels, as Supp. 666 (N.D. Cal. which showed opposed to adult businesses 1985). adult films bring about neighborhood ("adult deterioration. motels"). ATS Melbourne, Inc. v... Adult Yes 3 zones were provided Without giving any statistics, City of Melboume., 475 businesses within the city for adUltcourt found that there was no So.2d 1257 (Fla. Dist. Ct. could locate uses evidence that the "number of App. 1985). only in "C-3" locations where adult zones, and after businesses [could] operate in getting a [the city had] been "conditional use significantly restricted by the permit." extant zoning." p.1260. On'ell v. City of Hot NO, but not 4 areas in Hot Springs Court noted that it was Springs, 844 S.W.2d 310 decided on issue remained for adult unsure if those areas would (Ark. 1992). of whether there businesses, be truly available and were an adequate, but case was adequate decided on other ~ounds. number of relocation sites. Centaur, Inc. v. Richland 1,000 feet Yes At least 16 alternative Issue was dismissed. County, 392 S.E.2d 165 2 year sites existed. No (S.C. 1990). amortization discussion of percent of total land. Pre-Renton Cases I CASE NAME I ORDINANCE IORDINANCE Ue EL ? IsTATisTics RATIONALE/TEST Basiardanes v. City of 500 or 1,000 Pre-Renton 1,000 foot requirement Ordinance virtually banned Galveston, 682 F.2d 1203 feet NO between businesses adult uses. (5th Cir. 1982). banned from 80 to 90 percent of allowed zones. Purple Onion, Inc. v 500 or 1,000 Pre-Renton Only 10 out of 81 Jackson, 511 F. Supp.. feet NO possible sites were 1207 (N.D. Ga. 1981). acceptable and would be further limited by foot requirement between businesses. North St. Book Shot~r~e v. Pre-Renton Adult businesses only Village of Endicott,-5-82 F. NO allowed to locate in Supp.. 1428 (N.D.N.Y. two industrially zoned 1984). areas. CLR Corp. v. Henline, 702 Pre-Renton 1/2 mile strip of land F.2d 637 (6th Cir. 1983). was available. Bayside Enterprises v. 2,500 feet from NO no data given The zoning ordinance Carson, 450 F. Supp. 696 a school, church completely baned the (M.D. Fla. 1978) or other adult establishment of new adult use, and 500 businesses. feet from any · residential area.