HomeMy WebLinkAboutORD 819 (1980) ORDINANCE NO. 819
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN, CALIFORNIA, AMENDING THE TUSTIN
CITY CODE TO PROVIDE FOR THE REGULATION OF
ADULT BUSINESSES.
The City Council of the City of Tustin, California~ does ordain as follows:
Section 1: Section 9297 of the Tustin City Code is amended by adding the
following definiti one:
"Adult Bookstore" shall mean an establishment having as a substan-
tial or significant portion of its stock in trade, material which is
distinguished or characterized by its emphasis on matter depicting,
describing, or related to specified sexual activity or specified
anatomical areas, o~ an establishment with a segment o~ section
thereof devoted to the sate or display of such materiaL"
Section 2: Chapter 6 is added to Article ~ of the Tustin City Code to read
as follows:
Chapter 6
Adult Businesses
Part I General
%ll PURPOSE
The purpose o~ this chap~e~ is to ~egu]ate uses which, because of ~hei~
very nature are recognized as having serious objectionable
characteristicS, particularly when several of them are concentrated undar
certain circumstance ~ne.zeby having a deleterious effect upon the adja-
cent areas. Special regulation of these uses is necessary ~o insure that
these adverse effects wi[i no~ contribute to the b~igh~ng o~ downg~ad~ng
of ~he su~zounding neighborhood. The primary control or ~egula~ion is for
the purpose of preventing a concentration of ~hese uses in any one area.
"Adu[~ Bus~ne~" shall mean any bus~ness which is conducted exclu-
sively for the pa~onage of adults, and as to which miners
specifically exc!uded from patronage thereat, ei[he~ by law o~ by
the operators of such business. 'AdUlt Business' shall also mean and
include adult bookstores, adul~ ~heaters, massage parlors, tople~
1
1 dancing, strippers, figure modeling studios, adult motels or hate.is,
~ but shall not include those uses or activities the regulation of which
~5 are preempted by state law.
Zl "Adult Hotel/Motel" shall. mean a hotel or motel which provides,
5 through closed circuit television, or other media, material which is
6 distinguished or characterized by the emphasis on matter depicting
7 or describing or related to specified sexual activities or specified
8 anatomical areas.
9 "Adult Theater" shall mean a theater which presents live enter-
!0 tainment or motion pictures or video taped presentations or slide
1]i photographs, which are distinguished or characterized by their
!2 emphasis on matter depicting, describing, or related to specified
15 sexual activity or specified anatomical areas.
i~ "Material" relative to adult businesses shall mean and include, but
15 not be limited to, accessories, books, magazines, photographs,
16 prints, drawings, paintings, motion pictures, video tapes, and Ram-
l? phlets, or any combination thereof.
18 "Massage Parlor" shall mean any establishrnent required to be Ii-
~_9 censed pursuant to Section 3711 of the Tustin City Code.
20 "Figure ModeUng Studio" shall mean any establishment in which
2'1 models pose while exposing specified anatomical areas.
~ "Specified Anatomical Areas" shall mean:
25 1) less than completely and opaquely covered
2Z~ aj human genitals, pubic regions,
25 b) buttock, and
36 c) female breast be]ow a point immediately above the top
27 of the areola, and
28 2) human male genitals in a discernibly turgid state, even if
29 completely and opaguely covered.
50 "Specified Sexual Activities" shall mean:
~5! 1) human genitals in a state of sexual stimulation or arousal;
32 and/or
2
iL 2) acts of human masturbation, sexual stimulation or arousal;
~ and/or
3 3) fondling or other erotic touching of human genitals, pubic
A__ region, buttock, or female breast.
5 9612 REGULATED USES
6 All uses subject to the provisions of this Chapter shall comply with all of
'/ the regulations contained in this Article and the following regulations:
8 a) That adult businesses, adult hotels/motels, adult theaters, massage
9 parlors, fiqure modeling studios, and adult bookstores are not per-
1.0 mitted in any zone unless a conditional use permit is obtained
!1. pursuant to the provisions of Section 9291 of the Tustin City Code.
iL2 b) That no adult business shall be granted a conditional use permit
1.5 unless the property upon which such business is proposed to be
Zz~ located:
1.5 1) is classified in the zone C-l, C-2, or C-3 district; and
;16 !~ 2) is not within 1,000 feet of any lot zoned for residential use or
Z? .i occupied as a residential use; and
1.8 3) is not within 1,O00 feet of any lot upon which there is located
19 a church, or educational institution which is utilized by
;2.0 minors; and
2'i 4) is not within 1,O00 feet of any public park or play ground; and
2.2 5) is not within 1,000 feet of any lot on which there is located
23 another adult business, adult hotel/motel, adult theater, mas-
~ sage parlor, figure model studio, or adult bookstore.
°~5 9613 NONCONFORMING ADULT BUSINESSES
~6 All adult bookstores, adult businesses, adult hotels/motels, massage
P,? parlors, or figure model studios that were lawfully in existence as of the
.~8 effective date of this ordinance and were rendered nonconforming by the
,,~9 application thereto of this ordinance shall be discontinued or shah be
~0 brought into full conformance within one year of the effective date of
~! Ordinance 819 , except that such activities may continue for up to an
,. ,~ additional year upon the granting of a conditional use permit pursuant to
3
i the provisions of Section 9291 of the Tustin City Code and with
determination that the activity was obligated by written lease of the
premises exceeding one year from the effective date of Ordinance 819
or that the activity involves an investment of money in leasehold or
5 improvements such that the larger period is necessary to prevent undue
6 hardship.
9614 MEASUREMENT OF DISTANCES
8 For the purposes of this Chapter measurements shall be made in a straight
9 line, without regard to intervening structures or objects, from the nearest
10 portion of the building or structure used as a part of the premises where
11 the use described in Section 9612a is conducted to the nearest property
12 line of the premises of a church or educational institution utilized by
15 minors, or to the nearest boundary of a district restricted to residential
14 use by the Tustin City Code, or the nearest boundary line to another use
15 described in Section 9612a.
16 Section 3. Part 5 is added to Chapter 2 of Article 3 of the Tustin City
!7 Code to read as follows:
18 Part 5 Lewd Films
ii
19} 3251 PURPOSE
i
l The City Council finds that the commercial exploitation of explicit sexual
20z
31 conduct through the public sale or exhibition of lewd films constitutes a
22 debasement of family life, the community and the public health and
25 welfare; i.s offensive to the senses and interferes with the quality of life
24 in the community and the total community environment; is detrimental to
25 City commerce, property values and to the public safety; and that the
26 operation of such activities is detrimental to the health, safety, good
27 morals, convenience and general welfare of the City of Tustin and of its
28 residents, citizens and businesses. The City Council declares such
29 activities to be public nuisances, and herein establishes procedures for the
~0 abatement thereof.
~l 3252 DEFINITIONS
52 a) Lewd Films
! 'Lewd films' means any motion pictures which:
;~ 1) the average person, applying contemporary community stand-
5 ards, woul'd find, when considered as a whole, appeals to the
z~ prurient interest; and
ii
5 H 2) depicts or describes patently offensive representations or
6 i! descriptions of:
? ij a) Ultimate sexual acts, normal or perverted, actual or
8 ;! simulated; or
9 '~ b) masLurbation, excretory functions, or lewd exhibition of
:10 ii the genitals or genital area.
ll !! Nothing heroin contained is intended to include or proscribe any film
12 ~! which, when considered as a whole, and in the context in which it is
15 ~} used, possesses serious literary, artistic, political or scientific vatue.
l~ !~ b) Place
:j
15 .. "Place" includes, but is not limited to, any building, structure or
16 place; or any separate part or portion thereof, whether permanent
!? , or temporary.
:].8 ! c) Motion Picture Film
'f9 it "Motion Picture Film" shall include any:
20 ' 1) film or plate negative;
21 2) film or plate positive;
22 3) film designed to be projected on a screen for exhibition;
25 4) films, glass slides or transparencies, either in negative or
2~ ~! positive form designed for exhibition by projection on a
25 screen;
26 5) video tape or any other medium used to electronically repro-
27 duce images on a screen-
28 d) Person
29 "Person" means any individual, partnership, firm, association, corp-
~0 oration or other legal entity.
~! e) Knowledge
~.~ "Knowledge" means having knowledge of the contents and character
Z of the patently offensive sexual conduct which appears in such lewd
I~ film-
5 3253 EXHIBITION AND SALE OF LEWD FILMS- PUBLIC NUISANCE
4 a) Any and every place in the City of Tustin where lewd films are
5 publically exhibited, rented, leased or sold or is possessed for such
6 purposes is a public nuisance per so.
? 3254 KNOWLEDGE OF NUISANCE PRESUMED FROM SERVICE OF
8 RESOLUTION; ABATEMENT
9 a) Upon receiving notice through service of a certified copy of this
!0 Part and a cerr-ified copy of the resolution provided for heroin, any
I3. and every person who shall own, legally or equitably, lease, main-
l~p rain, manage, conduct or operate a place in the City of Tustin which
~L5 is declared to be a public nuisance as set forth and stated in Section
2L& 3253 hereof is deemed to be a person who has knowledge of such
15 ,, nuisance for the purpose of this Part and is, thereafter, responsible
16 for its maintenance, and shall be liable therefor.
l? i~ b) The places and subject matter declared to be public nuisances under
!8 ~ Section 3253 hereof shall be abeted pursuant to Government Code
2L9 Sections 38773 and 38773.5, Code of Civil Procedure Section 73!
20 and Civil Code Sections 3491 and 3z~94, as provided for herein.
2! 3255 ACTION BY CITY COUNCIL
22 Upon a specific finding that a public nuisance, as defined in Section 3253
25 hereof, exists in the City of Tustin, the City Council, in applying the
24 provisions of this Part to such nuisance, sha!I provide for the following by
2 5 re solu ti on:
'~a a) Declare the fact that such nuisance exists;
" b) Set forth the description or legal description arid street
28 address of the real property which constitutes the nuisance;
29 c) Set forth a statement of facts upon which the City Council
50 declaration of nuisance is based;
5! d) Order the revocation of all licenses and permits which have been
· 52, issued as a part of the operation of such business, subject to
6
::L confirmation by the court in the judicial proceedings required
herein. Criminal proceedings for transacting business without a
license at such address shall not be filed until the order of license
revocation by the City Council has been confirmed by judicial order;
5 e) Order the City Attorney to give written notice under Penal Code
6 Secton 373a to all persons named in Section 325z~ (a) hereof to abate
? such public nuisances immediately, by terminating the exhibitions of
8 such lewd film or films, or causing the same to be terminated;
9 f) Order the City Attorney to proceed as directed in Section 3256
10 hereof and do all things necessary to abate such public nuisance
!! through judicial proceedings and to conclude such proceedings as
12 expeditiously as is permissible under the law;
15 g) Inform and give notice to persons named in Section 325a,(a) hereof
la_ i! that:
.t
,=, 15 !) The City Council has determined that a public nuisance
16 presently exists at such place and address, and has revoked the
l? licenses and permits at that place, subject to court confir-
18 mation, and that, under Section 3254(a) hereof, they are
19 deemed to have knowledge thereof and are responsible there-
~0 for;
2,1 2) The City Council has ordered the City Attorney, as p~ovided
22 for under Section 3256 hereof, to commence legal proceedings
25 naming such persons as defendants in a civil action to abate
~4 the same judiciaily under Civil Code Section 3494 and Code of
25 Civil Procedure Section 731 and to seek compensatory and
26 punitive damages, and recovery in said action of the costs of
~7 abatement, including investigative costs, court costs, attor-
~8 neys fees, and other expenses;
29 3) All lewd motion picture films being used in conducting and
30 maintaining such public nuisances are considered to be contra-
31 band and the subject of forfeiture; and
52 4) The lewd motion picture film or films which are being used in
7
conducting and maintaining such public nuisance will be need-
ed at the hearing in court having jurisdiction of the lega!
proceedings brought by the City Attorney, pursuan[ to Evi-
dence Code Section 1503; and
5) From and after service on the place or its manager or acting
manager, or person then in charge of such place, of a certified
copy of this ordinance and a certified copy of such resolution,
any and all monies paid as admission price to or for the
exhibition or exhibitions of such lewd motion picture films are
considered to be a public nuisance, as personal property used
in conducting and maintaining such nuisance and as gain
derived from a wrongful act, contrary to the provisions of-
Civil Code Section 2224, and that forfeiture of the same wilt
be requested in the judicial proceedings required herein.
h) Order that a certified copy of said resolution and a certified copy of
this article be delivered forthwith in any manner normally used to
effectuate personal service of process as directed in Code of Civil
Procedure Sections 415.10 and 416.90 to all persons of record having
any legal or equitable interest in the real property, and to the
regula~ or acting manager or persons in charge of the place therein
declared a public nuisance.
3256 ACTION BY CITY ATTORNEY
Upon a specific finding by resolution of the City Council of the fact that
a public nuisance exists at a particular location, the City Attorney shall:
a) Forthwith, commence legal proceedings under Civil Code Sections
3491 and 3494 and Code of Civil Procedure Section 731, by the filing
of a civil action seeking the following relief:
1) An order that the motion picture or pictures named by the
City Council are lewd, as defined herein~
2) An order that the place named by the City Council where the
film or films are being exhibited is a public nuisance and that
the action taken by the City Council to revoke th~ licenses
8
1 issued to that place of business was lawful;"
J~ 3) An injunction enjoining and restraining all persons maintaining
5 said nuisance from exhibiting, renting, leasing or selling the
~ named lewd films at any time in the future in the City of
5 Tustin;
6 4) An order that all prints of the named lewd films be forfeited
? as contraband;
8 5) An accounting if all monies paid as admission price to or for
9 the exhibition or exhibitions or for the rental or purchase of
30 such lewd motion picture films, from and after the time the
:I:L persons maintaining said nuisance receive a copy of the
12 resolution of the City Council finding that a public nuisance
:L3 exists, and a judgment. that such monies are gain derived from
:[~ a wrongful act under Civil Code Section 222/4, and a public
~'= :15 nuisance;
!6 6) An order that all monies or valuable consideration received
!? and enumerated in the court ordered accounting be forfeited
18 as required by law;
i9 7) 3udgment for the City of Tustin for compensatory and punitive
20 damages and for all costs expended in abating the public
21 nuisance, including investigative costs~ court costs, reasonable
~2 attorneys fees, and such other expenses as are provided for
23 herein; and
2~_ 8) All other relief as the court may deem proper.
25 b) File a notice of the pendency of the action in the office of the
26 County Recorder of the County of Orange, pursuant to Code of Civil
__ 27 Procedure Section 409, giving the names of the parties, the object
28 of the action, and a description of the property thereby affected.
2,9 32.57 COST OF ABATEMENT; COLLECTION
50 a) The cost of abatement is hereby declared a special assessment
3! against the parcel of land upon which the public nuisance is
· ~' maintained; but only against the interest of the person or persons
1 determined in the action to be responsible for maintaining such
~ nuisance. As used heroin, the term 'cost of abatement' shah include,
· 5 but is not limited to, the following:
4= 1) Investigative costs;
5 2) Court costs;
6 3) Reasonable attorneys fees; and
? 4) Printing costs for any tria~ and appeaI.
8 b) Upon a judgment declaring a public nuisance in any proceedings
9 instituted pursuant to this article, the cost of abatement shall be
10 collected pursuant to the assessment proceedings as provided in
1! Section 4418 of the Tustin City Code as the same now reads or as
12 may be amended."
1D Section 4: Secton 6103 is added to Chapter 1 of Article 6 of the Tustin
1~ City Code to read as follows:
15 6103 INDECENT PUBLICATIONS
16 ii It shall be un!awful to sell or offer to sell, rent, lease, expose, exhibit or
!? !~
i circulate in any public place, or anywhere in view of a store or place
18 ij frequented by minors, or where it may come into the posesalon of or
19 disclosed to minors, any immorab indecent or obscene publication. Ira-
20 moral, indecent or obscene publications shall include printed written
21 matter, photographs, motion picture films, video tapes or any other
22 representation which:
23 a) The average person, applying contemporary community standards,
34 would find, when considered as a whole, appeals to the prurient
25 inter.est; and
26 b) Depicts or describes patently offensive representations or descrip-
27 lions of:
28 1) Ultimate sexual acts, normal or perverted, actual or
~9 simulated; or
50 2) Masturbation, excretory functions, or lewd exhibition of
51 the genitals or genital area.
5.~ Nothing heroin contained is intended to include or prescribe any matter
1O
2L which, when consi dered as a wholeD and in the context in which it is used~
2 possesses serious literary~ artistic~ political or scientific value?
5 PASSED AND ADOPTED at a regular meeting of the City Council of the
~ City of Tustin this 19th day of February 1980.
6 ~AY~R
?
ATTEST:
8
CITY CLERK
10
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RLL :pj :R: 12/07/7~
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T/D/Adult Bus D:!6
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11
! STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
2 CITY OF TUSTIN )
RUTH C. POE, City Clerk and ex~officio Clerk of the City Council of the
~ City of Tustin, California, does hereby certify that the whole number
of members of the City Council of the City of Tustin is five; Rat the
5 above and foregoing Ordinance No. 819 was duly and regularly
introduced and read at a regular meeting of the City Council held on
6 the 4th day of February 1980 and was given its second
reading and duly passed and adopted At a rggular meeting held on the
V 19th day of February , t980, by the following vote:
8
9 AYES: COUNCILMEN: SCHUSTER, SALTARELLI, KENNEDY, WELSH
10
NOES: COUNCILMEN: NONE
1!
12 ABSENT: COUNCILMEN: SHARP
i5
16 CITY CLERK, .
17
!8
PUBLISH TUSTIN NEWS:
20
February 28, 1980
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