HomeMy WebLinkAbout00 AGENDA 02-17-98 GENDA ADDENDIJ
CITY COUNCIL REGULAR MEETING
CITY OF TUSTIN
FEBRUARY 17, 1998
REGULAR BUSINESS (ITEM NO. 1 1)
11.
URGENCY ORDINANCE NO. 1196 - CONSIDERATION OF THE CITY OF TUSTIN
COMPREHENSIVE SEXUALLY ORIENTED BUSINESS ORDINANCE
Urgency Ordinance No. 1196 would establish a comprehensive ordinance related to
sexually oriented businesses in the City of Tustin. If adopted, the ordinance would
disperse and limit sexually oriented businesses to specified zoning districts; regulate
and license sexually oriented businesses, owners and employees; provide additional
health and safety regulations for sexually oriented businesses; and, repeal the
applicable sections of the Tustin City Code. The proposed ordinance regulates the
secondary effects associated with sexually oriented businesses while preserving the
First Amendment rights afforded to these uses to locate within the City. Area of
applicability is Citywide.
Recommendation by the Community Development Department:
1. Have first reading by title only and introduction of Ordinance No. 1196.
2. With a roll call vote, adopt the following Ordinance No. 1196 (4/5ths vote
required):
ORDINANCE NO. 1196 - AN INTERIM ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF TUSTIN, CALIFORNIA, 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
Council Agenda ADDENDUM February 17, 1998
DATE:
FEBRUARY 17, 1998
NO. 11
2-17-98
Inter-Com
TO:
FROM:
SUBJECT:
WILLIAM A. HUSTON, CITY MANAGER
COMMUNITY DEVELOPMENT DEPARTMENT
URGENCY ORDINANCE NO. 1196 - CONSIDERATION OF THE CITY OF
COMPREHENSIVE SEXUALLY ORIENTED BUSINESS ORDINANCE
TUSTIN
Recommendation: That the City Council adopt Urgency Ordinance No. 1196 by
a 4/5ths vote.
Fiscal Impact: There are no direct fiscal impacts associated with the Council's
adoption of this urgency ordinance. If a sexually oriented business is established
within the City, there will be an increased demand for Police and Code Enforcement
Services. These costs will be off-set through the annual permit fees
Background: Because of changes in case law within recent years, the Tustin City
Code Sections related to Sexually Oriented Businesses (also referred to as "Adult
Businesses") does not adequately regulate these uses. These uses are permitted in
the City's traditional commercial zoning districts surrounded by sensitive uses.
Conditional use permits and/or modified conditional use permits are required for
sexually oriented businesses to locate in the City, but no standards of operation (i.e.
security, lighting, licensing, etc.) are identified. A revision to these sections was being
prepared along with a comprehensive zoning code revision. However, facts have come
to our attention that necessitate a more prompt revision to the sections on sexually
oriented businesses.
Recently, the Community Development Department has received a number of inquiries
to establish sexually oriented businesses within the City. It is difficult to ascertain
whether or not these inquiries are legitimate or opportunities for those so inclined to file
lawsuits. Due to the increased interest in locating these uses within the City and the
Urgency Ord. No. 1196
February 17, 1998: Page 2
lack of adequate processing or operating standards, staff has prepared this urgency
ordinance. Unlike other land uses, sexually oriented businesses may not be subjected
to a moratorium. As noted in the Draft Ordinance, the City Council must find that the
lack of appropriate development and location standards of adult type uses poses an
immediate threat to the public health, safety, and welfare.
Discussion:
Review of Related Studies and Secondary Effects
The issues associated with sexually oriented business are not unique to the City of
Tustin. For a number of years, cities have been struggling with how best to regulate
sexually oriented businesses. The City has reviewed the following studies that
substantiate the adverse, secondary effects of sexually oriented businesses including
but not limited to: Upland, California (1992); Santa Maria, California (1993); Garden
Grove, California (1991); Phoenix, Arizona (1986); Minneapolis, Minnesota (1980);
Houston, Texas (1983); Indianapolis, Indiana (1984); Amarillo, Texas (1977); Austin
Texas (1986); Seattle, Washington (1989); Oklahoma City (1986); Beaumont, Texas
(1982); and Whittier, California (1978); and, the State of Minnesota Attorney General's
Working Group in the Regulation of Sexually Oriented Businesses (1986).
These studies identify that sexually oriented businesses present several real and
potential problems to cities in which they are located. Such impacts or as the Courts
have called them '!secondary effects" of sexually oriented businesses include: the
increase in crime rates within the businesses themselves and the areas that surrOund
them; the establishment of blight and downgrading of the areas, in which such
businesses, are located; a decrease in property values; and the reduction in non-adult
businesses which are willing to locate in the vicinity of adult businesses. Furthermore,
.as indicated in the 1986 State of Minnesota Attorney General's Working Group Report,
the combination of multiple adult use businesses within one building or in close
proximity compounds the secondary effects associated with a single adult business.
Consequently, it is appropriate to regulate the secondary impacts of these businesses
without regulating the content or the communicative elements of the businesses
themselves..
Studies to be Undertaken By the City During the Effect of the Urgency Ordinance
During the effect of this interim ordinance, the City will continue to conduct stUdies,
surveys and questionnaires of real estate appraisers, businesses owners, residential
owners, and parents in Tustin; and, continue to collect various studies and ordinance
pertaining-to the secondary effects that adult businesses produce.
Common Issues and Questions
The following is a summary of the issues and commonly asked questions associated
with establishing regulations for sexually oriented business and the associated
secondary effects. These issues and questions include:
Urgency Ord. No. 1196
February 17, 1998: Page
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 Oriented Businesses?
What constitutes enough sites?
Can the City use the fact that sexually oriented businesses are located in adjacent
communities as being adequate so that the City of Tustin can ban' such uses?
Can the City use its power of taxation to penalize these businesses?
How will the costs be 'off-set to license and monitor these premises?
Why is the City compelled to adopt an urgency sexually oriented business
ordinance.
The City of Tustin has not comprehensively updated its'ordinance since 1985 and
inquiries have been made by operators to locate in Tustin. Several Court decisions
pertaining to this area of the law have been issued since 1985 (Attachment B). Under
the current ordinance, the City uses a modified conditional use per:mit process to
control Sexually Oriented businesses, and there are no operational restrictions (i.e.
hours of operation, lighting, security, licensing of employees, etc..) In 1993, the Federal
District Court - Central Division, invalidated a similar ordinance in the City of Anahiem.
In part, the Court concluded that the Conditional Use Permit process provided the City
with too much discretion for a use protected by the First Amendment to the United
States Constitution. The lawsuit cost the City of Anahiem several thousands of dollars
in legal expenses and permitted the business to establish in a sensitive area. To avoid
sUch a consequence, the City of Tustin must deal with these uses without using the
Conditional Use Permit process and, establish by ordinance, operational regulations.
Are there currently any sexually oriented businesses operating in the City?'
As far as we know, there are none.
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.
Approaches by Other Jurisdictions
Detroit: Younq v. American Mini-Theaters
In 1976, the U.S. Supreme Court ruled on a City of Detroit ordinance which was
designed to separate adult businesses from each other, and more particularly,, from
certain regulated or sensitive uses. The Detroit ordinance was upheld based on a
study the City had conducted which found that adult businesses tended to degrade an
Urgency Ord. No. 1196
February 17, 1998: Page 4
area, raised crime rates, and lowered property values. Furthermore, the City found in
its study that these businesses create certain effects beyond the boundaries of the
business which posed a risk to adjoining neighborhoods. The U.S. Supreme Court in
deciding Young v. American Mini Theaters upheld the Detroit ordinance to the extent it
regulated these 'Secondary effects" and found that the distancing requirements'were
not per se unconstitutional. Consequently, one. approach jurisdictions, have taken is
that if adult businesses must be permitted in the City, then it is important to ensure that
they are separated from sensitive Uses such as residences, schools, churches, etc.
Renton v. Playtime Theaters
Another approach used by the City of Renton, Washington, was the setting aside of a
place or places in town where these businesses would be permitted. The Renton
Ordinance was upheld by the Supreme Court in 1986, City of Renton v. Playtime
Theaters, as a content-neutral time, place, and manner ordinance. The City of Renton
determined that it was more appropriate to concentrate these uses in a particular
section or sections of town where they were clearly separated from other sensitive uses
and where the City could more appropriately target its resources to ensure that the
.secondary effects of these businesses did not spread. In other words, the City of
Renton determined that if they must have such uses, they would set aside a certain
portion of the town for the uses wherein they could "keep an eye" on them.
Combination of Renton and Detroit
A' number of cities, more recently, have attempted to combine the separation
established by the Detroit case with the separation from other sensitive uses and other
businesses upheld in Renton. In this way, the secondary effects are regulated by
disbursing them throughout various zoning districts and then separating any adult
businesses which may come into existence from other adult businesses-to avoid the
combination of secondary effects. This manner of regulation of adult businesses is
generally acceptable so long as an adequate number of sites are available within the
City for these businesses to operate. While various courts in California have ruled that
4 - 6 sites are not sufficient as a matter.of law, the courts have not established a
formula or clear guidance on the number of sites that must be available.
V Can the City Ban Sexually Oriented Businesses
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 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 '~ontent neutral"with
respect to time, place, and manner and focus on reducing the '!secondary effects" of'
adult businesses while providing "reasonable alternative avenues of communication."
Urgency Ord. No. 1196
February 17, 1998: Page 5
Recently, the City of Westminster 10st 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-(%in taxes~ on adult business to
discourage them from locating within their respective jurisdictions. The U.S. Supreme
Court has held that the power to tax is the power to censor. (Murdock v. Pennsylvania
[1943] 319 US 105). More recently, the Court of Appeals has held that a city has the
power to tax all business, including First Amendment protected businesses if the tax is
equally applied to all businesses in the same category. (Times Mirror v. City of Los
Angeles, (1987) 237 Cal. 346). Accordingly, such businesses may not be singled out.
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 residential borough could not preclude such businesses, although there was
evidence that adequate businesses were in surrounding areas. Further, the Supreme
Court held that such an argument could not' provide a basis for constitutionality
because there was no county-wide zoning.
Urgency Ord. No. 1196
February 17, 1998: Page 6
The City of Tustin's Approach
The attached Ordinance uses a combination of the Renton and Detroit approaches, by
locating these uses in zoning districts away from sensitive uses and providing
distancing between sexually oriented businesses. The complete draft ordinance with
appropriate findings are attached (Attachment A). The list below highlights the major
provisions of the urgency ordinance.
The ordinance establishes that the purpose and intent of the proposed ordinance is
to regulate sexually oriented businesses to reduce the related secondary negative
impacts while preserving the First Amendment rights to locate these uses within the
City.
· The ordinance comprehensively defines those uses that constitute sexually oriented
businesses; ·
The ordinance establishes the PCMU, PC-C, PCC, M, and PC-IND zoning districts
as permitted areas where these uses may locate. Approximately 400 acres or nine
percent (9%) of the City's area would be available for such uses. The City's area
excludes MCAS, Tustin and public right-of-way areas. In our opinion, this is a
reasonable number of acres/sites.
· A minimum distance of 500 linear feet must be provided from residential, church,
park, schools, and other similar sensitive uses;, and a minimum distance of 500
linear feet is required between sexually oriented businesses. These distances are
measured in a straight line, without regard to intervening structures, from the. closest
exterior structural wall of the business to the nearest property line of sensitive uses.
· A minimum of 500 linear feet between Sexually Oriented Businesses as measured
from the nearest point of one business to another must be maintained.
· Based on the allowable zoning and distance requirements, there are approximately
150 available sites. In our opinion, this is an adequate number of sites.
· The Ordinance establishes advertising, lighting, security, and operational
requirements.
· Businesses would be prohibited from operating between the hours of 12:00 a.m.
and 9:00 a.m.
· Background investigations on the owners and employees of sexually oriented
businesses would be required. Employees will be separately licensed.
· The ordinance requires an application fee and an annual permit fee that relates to
the administrative costs for the City to implement and enforce this sexually oriented
business ordinance. The application fee will include the cost to conduct the
background investigation and issue the permits. The annual fee will include
personnel costs for City staff to inspect the premises and enforce the provisions of
the ordinance. A preliminary estimate for these costs is $1,000.00 for the
application and for the annual permit fee.
Urgency Ord. No. 1196
February 17, 1998: Page 7
The City Attorney has reviewed and approved the content and form of the proposed
ordinance.
State Code Requirements: The City Council has the authority to adopt an .interim
urgency ordinance if the Council finds there is an urgent need to protect the public health,
safety and welfare. The fact constituting the urgency are set forth in this staff report and in
the ordinance. Urgency ordinances require a 4/5ths vote of the City Council and are
effective immediately.
Urgency ordinances can be effective for a period of 45 days from the date of adoption, and
can be subsequently extended for an additional 22 months and 15 days if noticing and
public hearing procedures are followed. If adopted, Urgency Ordinance No. 1 i96 will expire
on April 2, 1998. Staff anticipates scheduling a noticed public'hearing for this extension for
the Council March 9, 1998 meeting
Environmental Determination: Ordinance No. 1196 either provides for the
amendment of existing regulations applicable to Sexually Oriented Businesses or, for
the first time, provides for zoning regulations which are specifically applicable to
Sexually Oriented Business uses. Such uses are allowed under the City's existing
zoning regulations. Therefore, it can be seen with certainty that there is no'possibility
that this ordinance may have a significant adverse effect on the environment, and
therefore the adoption of this ordinance is exempt from CEQA pursuant to Section
15061 (b) (3) of the CEQA guidelines.
Elizabeth A. Binsack
Community Development Director
Attachments:
A. Draft Urgency Ordinance No. 1196
B. Case Studies - Due to the voluminous nature of these studies, these documents are
available for review in the Community Development Department; however, a
summary of leading pre- and post- Renton cases is attached hereto.
eab\agenda\sobsr
ATTACHMENT A
Draft Urgency Ordinance No. 1196
ORDINANCE NO. 1196
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
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1 FINDINGS
The City Council finds as follows:
mo
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Co
D.
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
goveming 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 busineses 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 conside~:ation. 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
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
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
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. 1196
Page 2
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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
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
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
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 en~ure 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. 1196
Page 3
Qo'
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,
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 omen 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 to 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
Ordinance No. 1196
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:
'~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.
.
'~dult Bookstore," '~dult Novelty Store," or '~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:
a.
Books, magazines, periodicals or other printed matter, or photographs, films,
motion pictures, video cassettes, slides or other visual representations which are
characterized by the depiction or description of %pecific sexual activities" or
"specified anatomical areas";
Ordinance No. 1196
Page 5
bo
Instruments, devices, or paraphernalia which are designed for use or marketed
primarily for stimulation of human genital organs or for sadomasochistic use or
abuse of themselves or others.
Co
An establishment may have other principal business purposes tha~ 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 "specified sexual activities."
o
'g. dult cabaret" means a nightclub, bar, restaurant 'bottle club", juice bar or similar
commercial establishment, whether or not alcoholic beverages are served, which
regularly features: (a) persons who appear nude or in a state of nudity or semi-nude;
(b) live performances which are characterized by the exposure of'!specified anatomical
areas" or by %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".
.
'~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 fight-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-rem the sleeping room for a time
period of less than ten (10) hours.
o
'~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.
o
'~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).
7. '~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. 1196
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.
o
'~dult theater" means a theater, concern 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" 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. 1196
Page 7
E. 'Permitted or Licensed Premises" means any premises that requires a license and/or permit
and that is classified as a sexually oriented business.
Fo
'Permittee and or Licensee" means a person in whose name a permit and/or license to
operate a sexually oriented business has been issued, and individuals listed as applicants on
the application for a permit and/or license.
G. 'Person" means an individual, proprietorship, partnership, corporation, association or
other legal entity.
Ho
~'?ublic 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, basketball or tennis court, pedestrian/bicycle path
or trail, open space, wilderness area, or similar public land within the city which is under
the control, operation, or management of the city park and recreation authorities.
J. '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.
Mo
'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. 1196
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.
P.
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 Penai 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 obsenity; or (2) a
felony offense involving the 'possession or sale of a controlled substance specified in
Sections 11054, 11055, 11057, or 11058 ofthe 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, gii~ 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. 1196
Page 9
SECTION 4. PERMITTED LOCATIONS OF SEXUALLY ORIENTED BUSINESSES.
A.
a.
The establishment of a sexually oriented business shall be permitted only in the specified
PCMU, PC-C, PCC, M, and PC-IND zoning districts~ and shall be subject to the following
restrictions. No person shall cause or permit the establishment of a sexually oriented
business, as defined in this ordinance, within 500 feet of any religious institution, school,
boys' club, girls' club or similar existing youth organization, or public park or public
building or within 500 feet of any residential district or use, or within 500 feet of an
existing sexually oriented business.
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:
A person is guilty of a misdemeanor, if he/she operates or causes to be operated a
sexually oriented business except as provided in this ordinance.
(2)'
A person is guilty of a misdemeanor if he or she establishes or causes to be
operated a sexually oriented business except as provided in this ordinance within
500 feet of:
a. any religious institution
b. any school
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 brganization
(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 defenseto 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. 1196
Page 10
b.
C.
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.
Ao
Bo
C.
The distance between any two sexually oriented businesses shall be measured in a straight
line, without regard to intervening structures from the closest exterior structural walls of
each business.
The distance between any sexually oriented business and any religious institution, school,
boys' club, girls' club, or similar existing youth organization, or public park or public
building or any residential district or use shall be measured in a straight line, without
regard to intervening structures or objects from the nearest portion of the building or
structure 'used as part of the premises where the sexually oriented business is Conducted,
to the nearest property line of the premises of any residential district or use, a religious
institution, school, boys' club, girls' club or similar existing youth organization, public
park or public building such uses are hereinafter referred to as "sensitive uses or use".
The distance shall be calculated at the time of the application of the sexually oriented
business for a permit under this ordinance. For the limited purpose of determining
allowable distance for a proposed application under this ordinance an '~existing" sexually
oriented business is one that has a valid permit or one whose application has preceeded 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 ORIENTED
BUSINESSES.
m.
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. 1196
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.
Bo
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.
Co
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 Cormnunity 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.. 1196
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.
.
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 the date of denial, suspension or revocation.
12
Ordinance No. 1196
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, including a legal description of
the property, street address, and telephone number(s).
8. The applicant(s) recent photograph(s).
9. 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. 1196
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.
J.
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.
r.
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.
C.
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.
m.
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. 1196
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.
m.
The Community Development Director or designee, shall 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 that 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 J. Such conditional grant shall not
constitute a vested right to operate under the permit, and the permit may be denied if
disqualifying information, as specified in Section 10J is received by the City.
B. Grant of Application for Permit
The CommUnity Development Director or designee, shall grant the permit .unless one or
more of the criteria set forth in Section C beloTM 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
also indicate if the sexually oriented business is subject to prohibitions against Public
Nudity and Indecency pursuant to the United States Supreme Court decision in Barnes v.
Glen Theater, Inc., 501 U.S. 501 (1991). 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 who has been denied a permit to
operate a sexually oriented business within the City within the preceding twelve (12)
months, or 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.
15
Ordinance No. 1196
Page 16
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
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.
e. The application or permit fees required by this Ordinance have not been paid.
f. 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.
g. The granting of the application would violate a statute, ordinance or court order.
h. The applicant has a permit under this Ordinance which has been suspended or revoked.
i. An applicant has been convicted of a "specified criminal" act for which:
ko
(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 the above described '~pecified criminal
acts" within the time periods above may qualify and apply for a sexually oriented
business permit when the time period(s) has elapsed.
An applicant knowingly has in his or her employ, an employee who does not have a
valid license as required in Section 18.
2. If the Community Development Director or designee, denies the application, the Director
shall notify the applicant of the denial and state the reason(s) for the denial.
.3.
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. 1196
Page 17
SECTION 11.
ANNUAL APPLICATION/PERMIT FEE
The annual application/permit fee for a sexually oriented business permit is one thousand.dollars
($1,000.00), respectively. If the City 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 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 10 (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.
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.
SECTION 14. SUSPENSION OF PERMIT.
A. 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
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
17
Ordinance No. 1196
Page 18
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. The suspension shall remain in effect
until the applicable section of this Ordinance has been satisfied; or
7. OPerated the sexually oriented business in violation of the hours of operation set forth in
Section 22; or
8. Knowingly employs a person who does not have a valid license as required in Section 18
of this Ordinance.
Bo
The suspension shall remain in effect until the violation(s) of the statute, code, ordinance
or regulation in question has been corrected as determined by the City.
SECTION 15. REVOCATION OF PERMIT.
A. The Community Development Director or designee shall revoke a permit if a basis for
suspension described in Section 14 of this Ordinance occurs, and the permit has previously
been suspended within the preceding twelve (12) months.
B. 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 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
18
Ordinance No. 1196
Page 19
fact that a conViction is being appealed shall have no effeCt on the revocation of the
permit; or
7. A permittee or a management employee has knowingly allowed an act of sexual
intercourse, sodomy, oral copulation, masturbation or any other specified sexual activities
to occur in or on the permitted premises. '
8. A permittee has been operating more than one sexually oriented business under a single
roof. "
Co
A Notice of Proposed Revocation and the basis for it shall be provided in writing to the
permittee who shall have the opportunity to respond orally, or in writing (at permittee's
discretion) to the Community Development Director within five (5) days of delivery by
facsimile, messenger of the notice to the permittee. If the permittee does not respond, within
the five (5) day period, the revocation shall be deemed final. Otherwise, and except as
otherwise provided herein, the revocation shall be deemed final upon delivery of a Notice of
Revocation by facsimile, messenger, or personal delivery to the Permittee.
D. A revocation may be appealed to the City Council by 'filing a letter request stating the
grounds for appeal with the City Clerk. Such appeal shall be filed within five (5) days of
delivery of the Notice of Revocation, except that such time shall be automatically extended
by one day if the fifth day is a day when City Hall is-closed. A timely appeal shall stay the
revocation.
E.
The City Clerk shall set a hearing on an appeal at the next regularly scheduled City Council
meeting. The City Council shall take action on the appeal within forty five (45) days of the
filing of the appeal, unless the appellant has requested a continuance(s) and the
continuance(s) has been granted. Action by the City Council is final.
Fo
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 16. PERMIT DENIAL/REVOCATION.
After denial of an application, or denial of a renewal of an application, the applicant or permittee
may seek review of such action by an appeal to the City Council by filing a letter request within
five (5) business days of delivery of notice of denial to the applicant/permittee with the City
Clerk. The provisions of Section 16. D. and E. shall apply. A timely appeal shall stay the denial
of an applicant .or renewal of a permit. If the denial, suspension or revocation is affirmed upon
review, the administrative action may be reviewed by the Court.
· .
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.
19
Ordinance No. 1196
Page 2O
mo
g.
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 Secti°n is
hereby declared void.
SECTION 18. SEXUALLY OR1ENTED SERVICE PROVDERS'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 applicam may be issued a Sexually Oriented Business Service Providers License,
the applicant shall 'submit on a City provided form under penalty of perjury, th6 following
information:
1. The applicant's name or any other names (including '~tage" names) or aliases used by the
individual;
2. Age, date and place of birth;
3. Height, weight, hak and eye color;
4. Current residence address and telephone number;
5. Current business address and telephone number;
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 fingerprims 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
20
Ordinance No. 1196
Page 21
11.
12.
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.
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,
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. After the investigation, the Community Development Director or
designee shall issue a license unless the report from the. Tustin Police Department finds
that one or more of the following findings is 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
revo.ked 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
criminal act as defined in this Ordinance within the last five (5) years or the applicant has
committed any act during the existence of the previous license period which would be
grounds to deny the initial permit application; or the applicant has not violated any
provisions of this ordinance.
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 may be
appealed in the same manner as appeal on sexually oriented business.
21
Ordinance No. 1196.
Page 22
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 fifty (150) square feet of floor space, a film, video cassette or other video
reproduction which depicts specified sexual activities or specified anatomical areas, 'shall
comply with the following requirements:
Upon application for a sexually oriented business permit, the application shall be
accompanied by a detailed site and building plan specifying the location of one or more
manager's stations, the location of all overhead lighting fixtures and designating any
portion of the premises in which patrons will not be permitted. A manager's station may
not exceed thirty-two (32) square feet of floor area with no dimension greater than eight
(8) feet. The diagram shall also designate the place at which this permit will be
conspicuously posted, if granted. A professionally prepared diagram in the nature of an
engineer's or architect's blueprint shall not be required; however, each site and building
plan shall be oriented to the north or to some designated street or object and should be
drawn to a scale not less that. 1 inch = 20 feet. The Community Development Director or
designee, may waiVe the foregoing diagram for renewal applications if the applicant adopts
a site and building plan that was previously submitted and certifies that the configuration
of the premises has not been altered since it was prepared.
2. The application shall be sworn to be true and correct by the applicant. The applicant(s)'
and owner(s)' signatures shall be notarized.
3. No alteration in the configuration or location of a manager's station may be made without
prior City approval.
,
The owners and operator of the premises shall insure that at least one employee is on duty
and situated at each manager's station at all times that any patron is present inside the
premises.
.
The interior of the premises shall be configured in such a manner that there is an
unObstructed view from a manager's station of every area of the premises to which any
patron is permitted access for any purpose, excluding rest rooms. 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.
.
It shall be the duty of the owners and operator, and it shall also be the duty of any agents
and employee present on the premises to insure that the view area specified in Subsection
5 remains unobstructed by any doors, walls, merchandise, display racks or other materials
22
Ordinance No. 1196
Page 23
or person at all times and to insure that no patron is permitted access to any area of the
premises which has been designated as an area in which, patrons will not be permitted in
the application filed pursuant to Subsection A. of this Section.
.
No viewing room may be occupied by more than one person at any one time. No holes,
commonly known as 'glory holes", shall be allowed in the walls or partitions which
separate each viewing 'room from an adjoining viewing room or restroom.
.
The premises shall be equipped with overhead lighting fixtures of sufficient intensity to
illuminate every place to which patrons are permitted access and'an illumination of not less
than two (2.0) foot candle as measured at the floor level.
o
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;
C. A person under eighteen (18) years of age to purchase goods or services at the business
premises without the specific consent of a parent or guardian; or
D. A person who is .under eighteen (18) years of age to work at the bUsiness premises as an
employee.
SECTION 21,
ADVERTISING AND LIGHTING REGULATIONS.
A. It shall be unlawful and a person shall be guilty of a misdemeanor if he/she operates or causes
to be operated a sexually oriented business, and advertises the presentation of any activity
prohibited by any applicable state statute or local ordinance.
23
Ordinance No. 1196
Page 24
B. It shall be unlawful and a person shall be guilty of a misdemeanor if he/she operates or causes
to be operated a sexually oriented business, and displays or otherwise exhibits the materials
and/or performances at such sexually oriented business in any advertising which is. visible
outside the premises. This prohibition shall not extend to advertising of the existence, name,
or location of such sexually oriented business.
,
C. The interior premises of a sexually oriented business shall not be visible from outside the
premises.
Do
All off-street parking areas and premise entries of a sexually oriented business shall be
illuminated from dusk to closing hours of operation with a lighting system which provides an
average maintained horizontal illumination of one-(1.0) foot-candle of light on the parking
surface and/or walkways. This required lighting level is established to provide sufficient
illumination of the parking areas and walkways serving the sexually oriented business for the
personal safety of patrons and employees and to reduce the incidence of vandalism and
criminal conduct. A lighting plan shall be submitted to the Community Development Director
or designee.
E.
Nothing contained in this Section shall relieve the operator(s) of a sexually oriented business
from complying with the requirements of this Ordinance, zoning, building, health and fire
codes as may be amended form time to time or any subsequently enacted City ordinances or
regulations.
F. The regulations contained in this section apply regardless of whether a person has a valid
permit under this ordinance.
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.
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
24
Ordinance No. 1196
Page 25
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. '~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".
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. 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.
D.
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.
Eo
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.
25
Ordinance No. 1196
Page 26
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 performe~:s 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 '~:ouch" or a '§traddle" dance with a patron
while in or on the establishment premises. No performer shall contract to or engage in a
'~:ouch" or '~straddle'; dance with a patron while in or on the establishment premises. For
purposes of this subsection, '~: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:
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 establishment into compliance with this Section. Failure to do so while
continuing to provide life entertainment shall cause the establishment's permit to be
suspended under this Ordinance. The permit shall remain suspended until the
establishment is approved by the City's designated age.nt(s) as being in full compliance
with this Section.
.
The operator of an existing .sexually oriented business Operating under a valid permit who
wishes to 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.
26
Ordinance No. 1196
Page 27
~4. Subsection B shall become effective sixty (60) days from the effective date of this
ordinance.
5. Subsection C shall become effective ninety (90) days from the effective date of this
ordinance.'
6. Subsection D shall become effective ninety (90) days from the effective date of this
ordinance.
7. Subsection E shall become effective upon adoption of this ordinance.
8. Subsection F shall become effective sixty (60) days from the effective date of this
ordinance.
9. Subsection G shall become effective upon adoption of this ordinance.
10. Subsection H shall become effective upon adoption of this ordinance.
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.
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.
A. 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
27
Ordinance No. 1196
Page 28
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
Ail 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
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 3O
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.
28
Ordinance No. 1196
Page 29
PASSED, APPROVED, ADOPTED by the City Council of the City of Tustin at a regular
meeting held on the 17th day of February 1998.
JEFFERY M. THOMAS, MAYOR
PAMELA STOKER
CITY CLERK
STATE OF CALIFOKNIA
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 ofthe City Council held on the 17th day of February 1998, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
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- Rcnton cases is attached hereto.
Post-Renton Cases Discussing Alternative Avenues of
Communication for Sexually Oriented Businesses
-~ASE NAME
Renton v. Playtim_e
_
Theatres~
475 U.S. 41 (1986).
Function Junction. Inc. v_.
_City_ of Daytona Beach~ 705
F. Supp. 544 (M.D. Fla.
1987).
S & G News, Inc. v. Ci~
9f Southgate, 638 F. Supp.
1060 (E.D. Mich. 1986),
aff'd without published
opinion, 819 F.2d 1142
(6th Cir. 1987).
-~'fiternational Food &
Beverage Systems v. Ci~
of Fort Lauderdale, 794
F.2d 1526 (1986); on
remand to, 664 F. Supp.
482 (S.D. Fla. 1987), afl'd,
838 F.2d 1220 (I lth Cir.
1988).
ORDINANCE
1,000 feet from
sensitive uses,
and within one
mile of a school
400 feet from
sensitive uses &
1,000 feet from
another adult
business
1,000 ft of
another adult
business or
within 500 ft of
a residential
dwelling
750 feet from
sensitive uses or
other adult
businesses
ORDINANCE
UPHELD ?
Yes
Yes
Yes
Yes
STATISTICS
Pop: 32,000
Available land: 520
acres, which =s 5% of
total land.
A city official testified
that 8 adult uses could
located on the 12
available sites.
2.3% of total land was
available for adult
uses. City population:
30,647 City land:
4,400 acres of land'(°r
6.9 square miles).
City has 31 square
miles and population
of 156,000.
-More than 10 adult
bars were in existence.
-22 to 25 available
sites (10 of which
were locations where
adult uses already
existed).
~:L~TIONALE/TEST
The ordinance must be
"designed to serve a
substantial governmental
interest and [must allow] for
reasonable alternative
avenues of communication.."
Without evaluating
exactly how much land is
enough, the court found the
ordinance was reasonable.
12 sites were available.
"While a city may limit
aitemative 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).
"Southgate clearly allows
sufficient alternative means
of expression, since adult
uses are allowed in... 2.3
per cent of the land in
Southgate.v 638 F. Supp.. at
1066.
Ordinances may ban
establishments completely
which sell alcohol and
provide nude entertainment,
so this ordinance which
merely adds time, place and
manner restrictions is OK.
"We are at a loss how [the
district judge] could
determine as many as 22
sites for such bars were not
enough..." The city may
restrict businesses, just not
unreasonably.
4
CASE NAME
IORDINANCE [
ORDINANCEI
UPHELD ?
STATISTICS
IRATIONALE/TEST
County of Cook v, Ordinance Yes Total County land: This was reasonable even
RenaiSsance Arcade & restricts adult .190.59 square though avail~'ble land was in
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, ~avai~able, which was barrier between adult
(9th Cir. 1988), cert. 'business. effectively// 1.4% of t~'e 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 clef'mite
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 C-ity's relatively
Cal. Rptr. 682 (Cal. Ct. sensitive uses, square miles.-~Zity---,~ small geographic size, the
App. I989). and 1,000 feet estimated 5% of area. double restriction in the
from another would be av. ailabl6~"butordinance (1,000 feet
adult business when consider the between adult businesses &
requirement that adult 500 feet separation from
businesses be sensitive uses) leaves little
separated from one opportunity for adult
another by 1,000 feet businesses to operate within
the amount of the City.
permissible land The Court reported that
would be even less. other courts have frequently
found that the 1,000 foot
separation requirement
between adult businesses
fails to leave adequate
opportunity for adult
businesses to operate.
Bonneli, Inc. v. Board 0.f 5 year Yes - .' 44 locations available Adequate alternative
Adjustment, 791 P.2d 107 amortization, totaling I, I00 acres, locations available.
(Okla. Ct. App. 1989).
RATiONALE/TEST .
Town of Islip v. Caviglia, Must be in Yes Adult businesses Alternative .ay. enues of
73 N.Y.2d 544, 540 industrial zones, could locate on over expression were available.
N.E.2d 215 (1989). 'and further than 6,000. acres, including The total number of adult
500 feet from 85.6 miles of mnning businesses would not
sensitive uses frontage on open decrease.
roads.
Town = 92 sq. miles
Population= 300,000
SD J, Inc. v. City of 750 feet, and Yes No Spdcific statistics Adequate alternative sites
HouSton, 636 F. Supp. 1,000 feet from given. Court stated were available. To be
1359 (S.D. Tex. 1986), another adult generally that available the "sites need not
afl'd, 837 F.2d 1268 (5th business "hundreds" of sites be commercially viable."
Cir. 1988), cert. denied, were available. 837 F.2d at 1277.
489 U.S. 1052 (1989).
Southern Entertainmen. t. 1,000 feet from Ordinance City population: Fact that 6 of the 11 sites
Co. of Florida, Inc. v. City. sensitive uses content was 45,000 were currently unavail/~ble
of Boynton Beach, 736 F. and other SOBs found valid, but City land: 15.75 was not a relevant factor..11
Supp. 1094 (S.D. Fla. ordinance square sites was found adequate.
1990). deemed void for miles. Procedural rules were
failure to 11 sites available for violated when ordinance was
comply with .-:--_adult businesses, or enacted.
.....t 3.25 % of total land.. Alternative sites do not
statutory /
procedural roles ...... ."' need to be practically or
commercially viable.
Dumas v. Ci_ty of Dallas, 1,000 feet Yes 8 to 10 percent (21,000
648 F. Supp.. 1061 (N.D. 3 year acres) of city land was
Tex.), aff'd sub. nortr amortization available.
FW/PBS, Inc. v. City of
Dallas, 837 F.2d 1298 (5th
Cir. 1988), rev'd on other
grounds, 493 U.S. 215
(1990).
Brookpark News & Books, 1,000 feet from NO /' 3.6 acres out of a total This percentage of available
Inc-. v. Ci_ty of Cleveland, sensitive uses or ".-___ :of48,384 acres were land is "unduly restrictive
585 N.E. 2d 908 (Ohio Ct. from any other available for adult uses and significantly curtails
App. 1990). adult (.00007% of total), freedom of expression and
businesses.' access to protected speech."
585 N.E.2d at 91 I.
Alexander v. City'Of New ordinance Yes Available'land: 120 This provided an adec~uate
Minneapolis, 928 F.2d 278 restricting adult sites or 6.6% of total number of alternative sites.
(8th Cir. 1991) businesses to land.
one particular
district.
CASE NAME
IORDINANCE
ORDINANCE
UPIffELD ?
STATISTICS
IRATIONALE/TEST
Woodall v. City of El Paso, 1,000 feet · Remanded for Ordinance allowed for Court remanded.to exclude
950 F.2d 255 (5th-Cir.), consideration by 59 businesses on from consid~ra'tion 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 mefin the adult
(5th Cir.), rehearing for adult businesses, business has to expect to
denied, 979 F.2d 211 Precise number of profit by opening there.
(1992). sites unknown, but Locations undesirable for
court found "a economic reasons are not
substantial number of excluded from .alternative
potential sites do relocation areas.
exist." "There is no requirement
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 f~t Yes 26 potential sites, adult businesses"argument
Myrtle Beach, 953 F.2d that the available sites were in
140 (4th Cir. 1992). poorly lit industrial areas, far
from tourists was rejected by
the court. The businesses
could still "convey the
message to those looking for
such 'enlightenment.'"
International Eateries of 500 feet from a Yes 26 available sites for The ordinance provided
America v. Broward residential area adult businesses to reasonable alternative
County., 941 F.2d 1157 & 1000 feet relocate, avenues of communication.
(I 1 th Cir. 199 i), cert. from a church City population The adult use business
denied, 11.2 S.Ct. 1294 or school gxeater 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 1991.
CASE NAME
ORDINANCE I ORDINANCE ISTATISTICSUPHELD ?
RATIONALE/TEST
T-MARC v. Pinellas 400 feet from Yes 123. acceptable sims "The fact that several of the
Coun _ty, 804 F. Supp. 1500 sensitive use or . available. 123 sites might actually be
(M.D. Fla. ].992). other adult unavailable or economically
businesses, unfeasible is of no
1 year consequence." Court found
amortization this to be even more than
period found what was required.
reasonable.
Janra Enterprises v. Ci~ of. 500 feet from NO 3 available sites T-his did not provide
Reno, 818 F. Supp. 1361 sensitive uses, Preliminary Reno= 55 square miles constitutionally sufficient
(D: Nev. 1993). and 900 feet injunction alternative means of
from businesses granted to stop communication.
which hold the city from City conceded that
liquor licenses, enforcing the ordinance was more
ordinance, restrictive than necessary.
City of National City v. 1,000 feet from Yes City population: Assertion that shopping '
Wiener, 838 P.2d 223 (Cal. a residential area 57,000 centers do not usually rent to
1992), cert. denied, 114 and 1,500 feet Total land: 8.65 sq. adult businesses was not
S.Ct. 85 (1993). from other adult m/les/5,536 acres, considered by court because
businesses, Adult businesses could the government is not
schools, or -' locate anywhere in the responsible for private
public parks. 572 acres (10%), business decisions.
-- unless within which are Court found "no authority
an enclosed ' commercially zoned, that mandates a constitutional
mall. within an enclosed, ratio of adult businesses to a
mall. particular population figxtre."
3 permissible 838 P.2d at 848.
shopping malls already
existed, and more
could be built.
Q'Malle_9. v. City of. Yes At least 4% of the city Acceptable alternative
Syracuse., 813 F. Supp. 133 was available for adult locations.
(N.D.N.Y. 1993). uses, and if added to
that partial lots or lots
that didn't front
roadways, the
percentage rises to
more than 5%.
.o
CASE NAME
ORDINANCEI ORDINANCE
UPHELD ?
STATISTICS
IRATIONALE/TEST
Topanga Press, Inc. v. Ci_ty 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
contiguous 72 acres circle
around another adult use.
Court developed a five
factor test to determine if
relocation sites are
"realistically available" for
adult businesses. The core of
the test is that the "property
is not potentially available
when it is unreasonable to
believe that it would ever
become available to any
commercial enterprise." p.
1531.
Holmberg v. City of 1,000 feet Yes 35% of commercially
Ramsey, zoned land was
12 F.3d 140 (8th Cir. available.
1994).
CASE NAME
I ORDINANCE [ ORDINANCE
UPHELD
STATISTICS
RATIONALE/TEST
11126 Baltimore Blvd. v., 500or 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 l'onger
necessary to
decide the issue.
Thames Enterprises, Inc. v. 500 feet from NO 1,000 foot restriction struck
City of St. Louis, 851 F. 2d sensitive uses. down.
199 (8th Cir. 1988). 1,000 feet of
another adult
business unless
can obtain a
waiver from
neighbors.
Cornerstone Bible Church time, place and Yes 45% of land was
v. City of Hastings, 740 F. manner available.
Supp. 654 (D. Minn. restriction on
1990). location of a
church
United States Parmers 1,000 feet Yes No pertinent
Financial Corp. v. Kansas information.
City, 707 F. Supp. 1090
(W'.D. Mo. 1989).
City of Daytona Beach v. Laws banned Yes
Del Percio, 476 So.2d 197 nudity in places
(Fla. 1985). where alcohol
was sold.
New York State Liquor
Authority v.. Bellanca, 452
U.S. 714 (1981).
15192 Thirteen Mile Road, 500 or 1,000 Yes No discussion of
Inc. v. City of Warren, 626 feet relevant numbers.
F. Supp. 803 (E.D. Mich.
1985).
CASE NAME
I ORDINANC.E I ORDINANCE I RATIONALE/TEST
UPHELD? ISTATISTICS
Patei and Patel v. City of Ordinance NO Court found there was no
San Francisco, 606 F. re~lated motels evidence adult motels, as
Supp. 666 (N.D. Cal. which showed opposed to adult businesses
1985). adult films bring about neighborhood
("adult deterioration.
motels").
ATS Melbourne, Inc. v. Adult Yes 3 zones were provided Without giving any statistics,
City of Melbourne, 475 businesses within the city for adult court found that there was no
So.2d 1257 (Fla. Dist. Ct. could locate uses evidence that the "number of
App. 1985). only in "C-3" locations where adult
zones, and after businesses [could] operate in
getting a [the city had] been .,
"conditional use sig'nificantly restricted by the
permit." extant zoning." p. 1260.
Orrell v. City of Hot NO, but not 4 areas in Hot Springs Court noted that it was
Sr~rines, 844 S.W.2d 310 · decided on issue remained for adult unsure if those areas would
(.3a-k.-1992). ' of whether there businesses, be truly available and
·
were an adequate, but case was
adequate decided on other grounds.
number of
relocation sites.
,~,
Centaur, Inc. v. Richland 1,000 feet Yes At least 16 alternative Issue was dismissed.
County, 392 S.E.2d 165 2 year sites existed. No
(S.C. 1990). amortization discussion of percent
of total land.
ICASE NAME
Cases Which Supply No Statistics:
UPHELD? ISTATISTICS
TEST
Young v. American Mini 500/1,000 feet Yes
Theatres., 427 U.S. 50 between one
(1976). adult theatre and
any two
re~lated uses.
Schad v. Borough of excluded all live No
Mount Ephraim, 452 U.S. entertainment of
61 (1981). any 'Idnd
MD II Entertainment v,
City of Dallas, 28 F.3d 492
(Sth Cir. 1994)
ILQ Investments, Inc. v. 750 feet Yes City population: Alternative sites was not at
Ci_ty of Rochester, 25 F.3d 75,000 issue, instead issue.was over
1413 (8th Cir. 1994).' whether the statute was
unconstitutionally overbroad
and not content neutral.
Ci_ty of Vallejo v. Adult Yes reasonable number of sites
Book.s, 167 Cal. App. 3d existed. .
1169, 213 Cal. Rptr. 143
(1985), cert. denied, 475
U.S. 1064 (1986).
Tollis, Inc. v. San. 1,000 feet NO Not sufficiently narrow.
Bemardino County, 827 Included all theatres which
F.2d 13.29 (9th Cir. 1987). showed an adult movie even
once.
Family of St. Paul, Inc. V: 1,320 feet Yes
City of St. Pau|, Minn., 923 betw~n such
F.2d 91 (Sth Cir. 1991). facilities.
Zoning
ordinance
re~lated the
location of
residential
facilities for the
mentally
retarded or
mentally ill.
Pre-Renton Cases
CASE NAME
IORDINANCE ]
UPHELD?ORDINANCE I STATISTICS
RATIONALE/TEST
Basiardanes v. Ci_ty of 500 or 1,000 16re-Renton 1,000 foot requirement Ordinance virtually banned
GalveSton, 682 F.2d 1203 feet' NO between businesses adult uses.
(Sth Cir. 1982). banned from 80 to 90
percent of allowed _
zones.
Purple Onion, Inc. v. 500 or 1,000 Pre-Renton Only 10 out of 81
Jackson, 511 F. Supp.. feet NO possible sites were
1207 (N.D. Ga. 1981). acceptable and would
be further limited by
foot requirement
between businesses.
North St. Book .Shoppe v, Pre-Renton Adult businesses only
Village of Endicott, 582 F. NO allowed to locate in
Supp.. 1428 (N.D.N.Y. two industrially zoned
1984). areas.
CL'R 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.
13
AGENDA
v,TY COUNCIL REGULAR MEETm..u
CITY OF TUSTIN
FEBRUARY 17, 1998 - 7:00 P.M.
CALL TO ORDER
INVOCATION- Capt. Lee Lescano, Salvation Army Church
PLEDGE OF ALLEGIANCE
ROLL CALL
PROCLAMATION- Tustin Unified School District Invention Convention and Irvine Valley
College Astounding Inventions Competition Winners
PUBLIC INPUT- At this time members of the public may address the City Council
regarding any items not on the agenda and within the subject matter jurisdiction of the City
Council (NO ACTION can be taken on off-agenda items unless authorized by law). If you
wish to address the City Council on any matter, please fill out one of the blue forms located
on the speaker's podium and submit to the. City Clerk so that your remarks on the tape
recording of the meeting can be attributed to you. When you start to address the City
COuncil, please state your full name and address for the record. A Public Input portion is
provided both at the beginning and end of the meeting.
PUBLIC HEARING ( ITEM I )
I ·
ORANGE COUNTY FIRE AUTHORITY DRAFT REQUEST FOR PROPOSAL FOR
EMERGENCY MEDICAL TRANSPORTATION AND ESTABLISHMENT OF AN
ADVANCED LIFE SUPPORT SERVICE CHARGE
The Orange County Fire Authority (OCFA) has prepared a Draft Request for Proposal
(RFP) to solicit bidders to provide emergency ambulance service to the OCFA
Ambulance Service Areas for the next three years. The Public Hearing is to consider
the Draft RFP for Emergency Medical Transportation Services, and Establishment of
an Advanced Life Support Service Charge ceiling to recover actUal costs incurred by
the OCFA.
Recommendation by the Police Department:
1. Open and close the Public Hearing.
2. Adopt the 'Draft Request for Proposal including the Advanced Life Support rate
ceiling.
Agenda - City Council February 17, 1998 - Page 1
3. Adopt the foll~'wing Resolution No. 98-11:
RESOLUTION ~O. 98-11 - A RESOLUTION OF FHE CITY COUNCIL OF THE
CITY OF TUSTIN, CALIFORNIA, DESIGNATING THE ORANGE COUNTY FIRE
AUTHORITY AS THE: (1) APPROPRIATE GOVERNMENTAL BODY TO SELECT
A QUALIFIED BIDDER UNDER THE REQUEST FOR PROPOSAL FOR
EMERGENCY TRANSPORTATION AND RELATED SERVICES AND (2) THE
CONTRACTING AUTHORITY UNDER THE AGREEMENT FOR EMERGENCY
MEDICAL TRANSPORTATION AND RELATED SERVICES
Have first reading by title only and introduction of the following Ordinance No.
1195 amending Ordinance No. 955, Tustin City Code Section 3421.5
"Definitions", to read "Fire Chief" means the "Fire Chief of the Orange County
Fire Authority"; and Section 3426.2 to read, "No licensee shall charge more for
Advanced Life Support than those rates approved by the City or the Board of
Supervisors":
ORDINANCE NO. 1195 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN, CALIFORNIA, AMENDING SECTIONS 3421.5 AND 3426.2 OF
ARTICLE 3, CHAPTER 4, PART 2 OF THE TUSTIN MUNICIPAL CODE
REGARDING THE REGULATION AND OPERATION OF AMBULANCES WITHIN
THE CITY
CONSENT CALENDAR (ITEMS 2 THROUGH 9)
All matters listed under Consent Calendar are considered routine and will be enacted by one
motion. There will be no separate discussion of these items prior to the time of the voting
on the motion unless members of the Council, staff or public request specific items be
discussed and/or removed from the Consent Calendar for separate action.
m
APPROVAL OF MINUTES - FEBRUARY 2, 1998 REGULAR MEETING
Recommendation: Approve the City Council Minutes of February 2, 1998.
m
APPROVAL OF DEMANDS AND RATIFICATION OF PAYROLL
Recommendation: Approve Demands in the amount of $590,554.86 and ratify
Payroll in the amount of 9350,040.97.
m
RESOLUTION NO. 98-13 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, DESIGNATING THE DIRECTOR OF PUBLIC WORKS AS
CITY'S AGENT FOR THE. SUBMITTAL-OF THE HMGP APPLICATION TQ THE
GOVERNOR'S OFFICE OF EMERGENCY SERVICES FOR THE IRVlNE BOULEVARD
STORM DRAIN PROJECT, CIP/RDA PROJECT NO. 900024
Recommendation: Adopt Resolution No. 98-13 designating the Director of Public
Works/City Engineer as the City's agent to provide to the Governor's Office of
Emergency Services all matters pertaining to the Hazard Mitigation Grant Program
and approve Item No. 26 of the application as recommended ,by the Public Works
Department/Engineering Division.
5,
AWARD OF CONTRACT FOR ANNUAL ASPHALT CONCRETE REHABILITATION AND
SLURRY SEAL PROJECT, FY 1997-98 (CIP NO. 700001)
Recommendation: Award the fiscal year 1997-98 Asphalt Concrete Rehabilitation
and Slurry Seal Project contract to Roy Allan Slurry Seal, Inc. in the amount of
Agenda - City Council February 17, 1998 - Page 2
.
e
Se
$475,266.80 and aUthorize the Mayor and City Clerk to execute the contract
documents on behalf of the City as recommended by the Public Works Department/
Engineering Division.
PURCHASE OF PROPERTY AT 275 E. MAIN STREET AND CERTIFICATION OF
NEGATIVE DECLARATION FOR MAIN STREET FACILITIES
Recommendation: (1) Adopt the following Resolution No. 98-14 certifying a
Negative Declaration for construction of the Main Street Reservoir, renovation of the
Main Street water facilities and acquisition of the property at 275 E. Main Street, and
(2) Approve the Agreement to Purchase Real Property at 275 E. Main Street between
William D. Dickinson and Jeanine M. Dickinson, trustees for the Dickinson Family
Trust., and the City of Tustin, and authorize the Assistant City Manager to execute
all documents as recommended by the Public Works Department/Engineering
Division:
RESOLUTION NO. 98-14- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF-
TUSTIN, CALIFORNIA, CERTIFYING THE FINAL NEGATIVE DECLARATION AS
ADEQUATE FOR THE MAIN STREET WATER FACILITIES, PROJECT NOS. 600103
AND 600108
RESOLUTION NO. 98-15 - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, CALIFORNIA, APPROVING PLANS AND SPECIFICATIONS FOR THE EAST
TUSTIN LANDSCAPE REPLACEMENT PROJECT
Recommendation: Adopt Resolution No. 98-15 approving plans and specifications
and authorizing advertisement for bids for the project subject to approval of the fiscal
year 1997-98 mid-year budget as recommended by the Public Works Department/
Field Services Division.
PROGRESS REPORT ON CEDAR GROVE PARK AND HERITAGE PARK
Recommendation: Receive 'and file subject report as recommended by Parks and
Recreation' Services.
PLANNING COMMISSION ACTION AGENDA- FEBRUARY 9, 1998
All actions of the Planning Commission become final unless appealed by the City
Council or member of the public.
Recommendation: Ratify the Planning Commission Action Agenda of February 9,
1998.
REGULAR BUSINESS (ITEM 10 )
10. 1997-98 MID-YEAR BUDGET REVIEW
A review of the City's first six months of operations under the adopted 1997-98
budget and projected revenues and expenditures through year end indicate that all
operating funds are in balance and, where applicable, reserve requirements will be
met.
Agenda- City Council February 17, 1998 - Page 3
Recommendation
.he Finance Department:
1. Transfer an additional 9500,000 from the General Fund to the Liability Fund to
fund the minimum acceptable reserves of 9750,000 as required by the Orange
County Cities Risk Management Authority. Total 1997-98 transfer will be 91
million.
2. Transfer 91.5 million from the Unappropriated Reserves of the General Fund to
the Capital Improvement Fund to accumulate reserves for the proposed Seven
Year Capital Program.
3. Transfer 9500,000 from the Unappropriated Fund Balance of the General Fund
to the Park Development Fund.
4. Appropriate 9260,000 for the East Tustin Landscape Replacement .Program.
5. Appropriate 9200,000 from the Unappropriated Fund Balance of the Measure
"M" Turnback Fund for preliminary work on the Edinger Widening Project, Red
Hill to Jamboree Road
PUBLIC INPUT- At this time members of the public may address the City Council
regarding any items not on the agenda and within the subject matter jurisdiction of the City
Council (NO ACTION can be taken on off-agenda items unless authorized by law). If you
wish to address the City Council on any matter, please fill out one of the blue forms located
on the speaker's podium and submit to the City Clerk so that your remarks on the tape
recording of the meeting can be attributed to you. When you start to address the City
Council, please state your full name and address for the record. A Public Input portion is
provided both at the beginning and end of the meeting.
OTHER BUSINESS - City Manager, City Attorney, City Council
COMMITTEE REPORTS- City Council
CLOSED SESSION- The City Council shall convene in closed session to confer with the
City Attorney: (1) regarding pending litigation to which the City is a party, William D..
Franks v. City of Tustin, City Manager William Huston, SACV 97-794(GLT); W,D. Franks
v. City of Tustin, 97CV009289; and W.D. Franks v. City of Tustin, AHM 0040436; (2)
regarding public employee performance evaluation - City Manager; and (3) regarding
conference with negotiator (to be designated by City Council) and unrepresented employee,
the City Manager.
ADJOURNMENT - The .next regular meeting of the City Council is scheduled for
Monday, March 2, 1998, at 7:00 p.m. in the Council Chambers at 300 Centennial Way.
Agenda - City Council February 17, 1998 - Page 4