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HomeMy WebLinkAboutORD FOR INTRODUCTION 01-18-82DATE: TO: FROH: S UBJ ECT: January 4, 1982 ORDINANCES FOR INTRODUCTION Inter- Corn THE HONORABLE MAYOR AND CITY COUNCIL JAMES G. ROURKE, CITY ATTORNEY ROBERT L. LAVOIE, DEPUTY CITY ATTORNEY ADULT BUSINESS ORDINANCE This office has prepared the attached draft Ordinance amending the Tustin City Code as it pertains to the regulation of adult businesses in response to a recent Court of Appeals decision striking down an ordinance of the City of Garden Grove. In Ebel v. Garden Grove (1981) 120 Cal.App.3d 399, the Court struck down Garden Grove's ordinance on the basis that the ordinance provided that any business seeking to operate an adult business within the City's specified zones was required to first acquire a conditional use permit. In the conditional use permit process the City was permitted to deny the conditional use permit based upon subjective standards incapable of the precise measurement demanded by the First Amendment to the United States Constitution. The Court held that there was no assurance in the ordinance that a permit would be issued under any circumstances and that the ordinance was therefore unconstitutionally vague on its face. The conclusion to be drawn from the case is that a City which regulates uses protected by the First Amendment may regulate such uses only on the basis of objective standards. If the objective standards are satisfied, the City must issue the permit to conduct the use. The current adult business ordinance of the City of Tustin falls within the parameters of the decision announced in Ebel v. City of Garden Grove in that Tustin City Code Section 9612a requires adult businesses to acquire conditional use permits before operating its business within the city limits. Tustin City Code Section 9291, which sets out the procedures for acquiring a conditional use permit, allows the Planning Agency to deny the permit where the business is found to be detrimental to the health, safety, morals, comfort and general welfare of the persons residing and working in the neighborhood of the proposed use or when it will be injurious or detrimental to property and improvements in the neighborhood or the general welfare of the City. This discretion of the Planning Agency is clearly no longer permitted in determining whether a business which is protected by the First Amendment should be granted a con- ditional use permit. The proposed amendment to the Tustin City Code still requires that a conditional use permit be obtained by an adult business prior to its commencement of business in the City of Tustin. The amend- ment provides however that when the intended use is one that is entitled to First Amendment protections then the City will not have the discretion to deny the permit on the basis of the health, safety, morals, comfort and welfare of the City's residents. It is clear that the trend of law is to continue to restrict the power of cities to regulate businesses involving First Amendment protections. It is our opinion that if the proposed amendment to the Tustin City Code is adopted, the Code will conform with the present case law; however, future cases may again require other changes to the adult business ordinance. RLL:lw:D:12/23/81 cc: W.H. City Clerk RECQM~ENDAT~ON: M. O, ~ T~at Ordinance No. 866 have first reading by title only. M~ O. ~ That Ordinance No. 866 De introduced. -2- 6 ? 10 11 12 13 15 16 17 18 20 21 22 23 24 25 26 27 28 O~D INANC.~. NO. 866 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, k~NDING TUSTIN CITY CODE SECTION 9612 PERTAINING TO ADULT BUSINESSES. The City Council of the City of Tustin, California, does ordain as follows: That Subsection a of Section 9612 of the Tustin City Code is amended to read as follows: "a) That adult businesses, adult hotels/motels, adult theaters, massage parlors, figure modeling studios, and adult bookstores are not permitted in any zone unless a conditional use permit is obtained pursuant to the pro- visions of Section 9291 of the Tustin City Code, provided, however, that if the said businesses to be conducted are entitled to protections of the First Amendment to the United States Constitution, a conditional use permit shall be granted the applicant if the said businesses comply with the pro- visions of this Chapter 6 of Article 9 of the Tustin City Code, without a determina- tion by the Planning Commission determining whether the said business will be detrimental to the health, safety, morals, comfort and general welfare of the persons residing or working in the neighborhood of the proposed use or whether it will be injurious or detri- mental to property and improvements in the neighborhood or the general welfare of the City." PASSED AND ADOPTED at a regular meeting of the City Council of the City of Tustin, California, held on the day of , 1982. ATTEST: _~LAYO R CITY CLERK RLL:lw:D:12/23/81 9612 REGULATED USES Ail uses subject to the provisions of this Chapter shall comply with all of the regulations contained in this Article and the following regulations: a) That adult businesses, adult hotels/motels, adult theaters, massage parlors, figure modeling studios, and adult bookstores are not permitted in any zone unless a conditional use permit is obtained pursuant to the provisions of Section 9291 of the Tustin City Code, provided, however, that if the said businesses to be conducted are entitled to protections of the First Amend- ment to the United States Constitution, a conditional use permit shall be granted the applicant if the said businesses comply with the provisions of this Chapter 6 of Article 9 of the Tustin City Code, without a determination by the Planning Com- mission determining whether the said business will be detrimental to the health, safety, morals, comfort and general welfare of the persons residing or working in the neighborhood of the proposed use or whether it will be injurious or detrimental to property and improvements in the neighborhood or the general welfare of the City. b) That no adult business shall be granted a conditional use permit unless the property upon which such business is proposed to be located: 1) is classified in the zone C-l, C-2, or C-3 district; and 2) is not within 1,000 feet of any lot zoned for residential use or occupied as a residential use; and 3) is not within 1,000 feet of any lot upon which there is located a church, or educational institution which is utilized by minors; and 4) is not within 1,000 feet of any public park or play- ground; and 5) is not within 1,000 feet of any lot on which there is located another adult business, adult hotel/motel, adult theater, massage parlor, figure model studio, or adult bookstore. -2-