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HomeMy WebLinkAboutAgenda Report - May 6, 1992 (93)CIN OF LODI AGENDA TITLE: Consideration of an ordinance relating to the requiatlon of adult businesses. MEETING DATE: May 6, 1992 PREPARED BY: City Attorney RECOMMENDED ACTION: Council considerdtlon of the attached ordinance regulating the location and manner of operation of adult businesses. BACKGROUND: The recent opening of an adult bookstore to downtown Lodi has pointed out that the City presently has no specific regulations for such uses other than those applicable to all businesses generally. This has resulted in a great deal of discussion on the advisability of having specific regulations for adult businesses. The attached draft ordinance has been prepared to deal not only with existing businesses, but to try to anticipate situations which may arise at some future date. The proposed ordinance would cover not only adult bookstores. but video arcades and theaters showing adult films, stores whicl. sell articles of an adult nature. "modeling studios' which are in reality merely places where nude entertainment is offered, and newsracks offering sexually oriented me terial . Th+- draft has been prepared using a number of ordinances from other ju ,dictions as models, and reflects to the best of `►Ey ability accommodations for recent court decisions. It is fundamentally a zoning or land use regulation rather than a w n a l statute. Cases such as tit of Renton v. Pla time Theaters point out that difference between zoning7rand use regulations and ordinances aimed at controlling conditci. The U. S. Supreme Court said a reaulation aimed at the "Secondary effects" of adult businesses (such as blight. etc.) may be proper. however, an attempt to directly control the "coawwunncation" aspects of adult books or films will probably fail on First Amendment grounds. APPROVED _ THOM" A PETERSON L CRY "WWQW ADULTCC/TXTA.OIY °G' T}t le: cot"slderd'.1(,r pf ordinance rs-ie!,rc to the rcy4 _1Vr f adult businesses. Date: Pey 6, 1992 Page: Two For this reason, I believe ar attempt to require background checks on operators of adult businesses would fail because it. seems ai"-d more dt individuals than load uses. The only case on point found was Genura v. Cit of Peoria (1980) 619 F.2d 1203, where Peoria's ordinance requ11tng a Vackgir -- - check of adult business operators was overturned. Although municipalitie� can. for example. investigate operators of massage parlors, that actlyity has no First Amendment protection. the �ommunity Development Director has recommended thdt these businesses not be subject to use permits. since Lodi has traditionally maintained good land use control without utilizing use pe mits as extensively as other cities. Admittedly ,many other cities' ordinances required use permits as d part of the regulatory process. but in many cases. the broad discretion associated with issuance of these use permits was the reason the ordinances were Overturned. As discussed above, the draft ordinance covers situations not yet faced by Lodi but which could feasibly occur. These include adult newsracks, gift shops, modeling studios, etc. The ordinance does not, however, cover "cabarets". i.e., nightclubs where 'adult" entertainment such as topless dancing, might be offered. They were not included because these uses present an entirely new set of considerations. Taverns or nightclubs already exist all over the City, and separation requirements would create major problems. If it is desired to regulate adult entertainment in these, a specific set of regulations would probably be required. Council direction on this point is requested. It is also true that no restriction on doing business with minbrs under 18 years of age is included. This was anitted because first. that seems to go beyond "secondary effect' regulation and also. State law governing Such things as contributing to the delinquency of minors may already have preempted the field. As drafted, the chief effects of this ordinance are: 1) To require 1,000 -foot separations from schools, churches. care centers, playarounds and other adult businesses; 2) Regulates the exterior appearance of the buildings where adult businesses are carried on; 3) Regulates hours of operation; and 4) Requires that the interior of film or video tape viewing booths be visible from the front of the premises. ADULTCCITXTA.OIV Title: Consideration of ordnance reIatiriif to the regi, tion of adult businesses. Gate: My 6. 1992 page: Three Freiiminary calculations indicate that because of the actual patterns of Lodi 's residential zones. it would have been difficult to establish separations from such residential zones without severely limiting potential locations for adult businesses. Prior cases such as Cit of Stanton v. r�Y have held thdt where separation requirements leave too ew s tes —for such uses, the ordinance may be invalidated. The attached ordinance was drafted to avoid that problem. Adult businesses are presently allowed in all industrial and commercial zones. Calculating separations based on these existing conditions indicates there would stfil be about 635 acres of industrial and 85 acres of comwrercial)y -zoned property usable for adult business locations. Since the present business on South Sacramento Street is within 1.000 feet of several perks. churches and schools, it should be remembered that even if this ordinance is adopted. the existing business would be grandfathered in as a prior nonconforming use. It would be allowed to continue for art undetermined amount of time under the existing regulations for nonconforming uses unless the Council chooses to establish an amortization schedule. Even if that was done, it would simply require that the operator relocate to a conforming location at the end of the specified period. Uhether that Is desirable is a question for Council discretion. FUMING: None determined. Respectfully submitted. �e City Attorney ADULTCC/TXTA.GIV ORDINANCE 140. 1550 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LOD I RELATING TO THE REGULATION OF ADULT BUSINESSES ass==a=sas=x sssassxss sssss sxs sssssacxax sassaassxxccscs=-ss-xsa-. s...=ccc BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LOBE AS FOLLOWS: SECTION 1. Chapter _—. Adult Businesses, is hereby added to the Lodi Municipal Code to read as follows: Chapter ADULT BUSINESSES Section 1. Findings Section 2. Definitions Section 3. Location of Adult Businesses Section 4. Appearance of Premises: Advertising Displays Section 5. Viewing Booths: Visibility Section 6. Hours of Operation Section 7. Severabi 1 it Section 1. Findings. The City Council of the City of Lodi finds and declares that adult businesses, by their nature, generate certain secondary effects unless regulated. These include blight, downgrading of neighborhoods. lowering of property values, and a tendency to attract undesirable persons who may engage in certain types of criminal conduct. Experience in other cities has shown that where adult businesses are -1- concentrated, neighbcrhoods deteriorate and the areas become less desirable piaces in which to work and live. To avoid these secondary effects. this ordinance is intended to prevent concentrations of such uses in a single area, and to regulate to the extent permitted by law the manner in which adult businesses are conducted. Section 2. Definitions. A. "Adult business" shall include the following: 1. "Adult bookstore" means any commercial establishment that has 25% or more of its stock in books. magazines. photographs. drawings, video tapes, films, or other representations which describe or depict specified sexual activities or specified anatomical areas. 2. "Adult gift shop" means any commercial establishment that has in its stock articles or merchandise more than 25% of which is characterized or distinguished by emphasis on matter depicting Or describing specified sexual activities or specified anatomical areas. 3. "Adult newsrack" means any coin operated maChi0e or device dispensing material substantially devoted to the depiction of specified sexual activities or specified anatomical areas. 4. "Adult theater" means any commercial theater or place of business which presents live entertainment, closed circuit television, video tapes, films, or slides more than 25. of which -2- dre characterized or distinguished by emphasis on " tter depicting or describing specifled sexual acttvit+es or spec If led anatomical areas. 5. "Adult video establishment" means an establishment dealing in the sale or rental of video tapes or cassettes for use or viewing on or off the premises, and having 25' or more of its stock in trade in materlal which is characterized or distinguished by its emphasis on matters depicting or describing specifled sexual activities or specifled anatomical dreas. 6. 'Modeling studio' means any business or establishment which. for any form of consideration. provides the services of a live human model, either wholly or partially nude, for the purpose of allowing customers or patrons to paint. sketch. draw, photograph or reproduce by other method an image of or upon such model. 8. "Child care center' means any business or establishment licensed by the State of California for child care or day care services. C. ISdnolI means an institution, either public or private. for instruction in courses of study required by the california Education Code or which is maintained pursuant to standards set by the State Board of Education. This includes nirsery school. kindergarten, elementary school, junior high school, senior high school, or special institution of learning under the jurisdiction of the State DepartrsEnt of Education. -3- C. 'Specified Sexual activities- aeons: I, Depiction or d(IS(rtrtlon of: a) Actual or SIRVIated sesual intercourse, fr�lotio, eunnl l Ingus. best is l ity . sodomy. sadolmasoekiso, onailogus. coprophils, necrophilia, or pedophilia; b) Clearly depicted human genitals to a state of sexual stimulatton or arousal; C) Fondling or touching of nude hua►an gcnita 4. pubic regions, buttocks or female breasts; d) Human excretion, urination, menstruation. vaginal or anal irrigation; or e) Any cowbination of the foregoing. E. 'Specified anatomiCAI areas' means: I. less than completely and opaquely covered: a) Human genitals or pubic region; b) Buttocks; C) Female breasts below a point iawiediately above the top of the areolae; and II. Human wale genitals in a discernibly turgid or erect state. even if completely and opaquely covered. Section 3. location of Adult Businesses. From and after adoption of this ordinance, no person shall establish. conduct or pervit to be established or conducted any adult business within 1.000 feet of any church, school. playground. child care center, or other adult business. WIN For purposes of this section, the distance between uses $hall be measured in a straight line w "',out recird to intervening structures from the closest exterior , or each business or use. Adult businesses in existence on the effective date of this chapter are deemed non -conforming uses which may continue subject to the provisions of Section 17.69.030 of this Code. Section 4. Appearance of Premises: Advertising Displays• A. The exterior appearance of buildings housing adult businesses shall not be inconsistent with the external appearance of commercial structures already constructed or under construction within the immediate neighborhood so as to cause blight, deterioration. or substantially diminish or impair property values in the neighborhood where such business is located. B, No adult business shall display in any fashion or location visible to persons on any public street or sidewalk any sign, poster, photograph, or display of merchandise or stock in trade depicting specified sexual activity or specified anatomical areas. Section 5. Viewing Booths: Visibility. No adult business in which is located one or more viewing booths for the purpose of viewing films. cassettes. or video tapes Characterized by emphasis on matter depicting sptcified sexual activities or specified anatomical areas shall be maintained or operated unless the complete interior of such booths or enclosures where films or tapes are viewed is visible from the entrance to such -5- premises. No partially or fully enclosed or concealed booths shall be permitted. Section 6. Hours of Operation. No adult business as defined herein with the exception Of adult newsracks shall remain open between the hours of 2:00 a.m. and 8:00 a.m., and all patrons, customers, and visitors shall be excluded therefrori during those hours. Section 1. Severability. Ifi any section, subse, ion. sentence, clause or portion of this chapter is, for any reason, held to be invalid or unconstitutional by the decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council of the City of Lodi declares it would have adopted this chapter and each section. subsection, sentence, clause or portion thereof irrespective of the fact that any one or more sections. subsections, sentences. clauses, or portions thereof should be declared invalid or unconstitutional. SECTION 2. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. SECTION 3. This ordinance shall be published one time in the "Lodi News Sentinel". a daily newspaper of general circulation printed and published in the City of Lodi and shall be in force and take effect thirty days from and after its passage and approval. WE Approved this day of 7 .JR - Mayor Attest: ALICE M. REIMCHE City Clerk sasssxsxazxxxasalas:::sxssxx:sssss:s:sa[:asasxasxs:asasassasssssasaxsra: State of California County of San Joaquin, ss. 1 -Alice M. Reimche. City Clerk of the City of Lodi. do hereby certify that Ordinance No. 1550 was introduced at a regular meeting of the City Council of the City of Lodi held May 6, 1992 and was thereafter passed, adopted and ordered to print at a regular meeting of said Council held 1992 by the following vote: Ayes: Council Members Noes: Council Members Absent: Council Members - Abstain: Council Members - 1 further certify that Ordinance No. 1550 was approved and : igned by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form BOBBY H. McHATT City Attorney ORDI550/TXTA.O2V -7- ALICE M REIMCHE City Clerk CITY COUNCIL LAMES W PINKERTON. Mayor PFlILLIP A PENNINO M"M Pro Tempore DAVID M. MNCHMAN {ACK A SIEGLOCK (OHN R. (Randy) SNIDER Cep 6 September 15, 1992 mow( CITY OF LODI CITY HALL, 221 VYEST PINE STREET TA. Box 3006 LODI, CALIFORNIA 95241-1910 (209) 334-5634 FAX 110" ))Silts Charles A. Pacheco, Enquire Pacheco L Pacheco. Inc. 910 Florin Road, Suite 304 Sacramento, CA 95831 Subject: KAREN A. RAY: MASSAGE TliCMNXCIM LICIiNSE Mar Mr, Pacheco: THOMAS A. PETERSON City Manager ALICE M REIMCHE City Clerk BOR W NAT7 Cay Atlo"wy Pursuant to our conversation of September 15, 1992 and the stipulation and agreement of the Lodi city Council at Its meting of August 5, 1992 regarding yo= client, Karen A. Ray, returned herevith in your client's i MassAge Technician License. i At the August 5, 1992 meeting, the Council had stipulated that should the charges of a violation of California Penal Code Section 647(b) or a related offenst be diwissed. your client would retain her Massage Technician Licenst. Since the District Attorney's office has decided not to press the charge against your client, the Massage Technician's License is therefore returned. Sincerely, Y J BOB W - vc =Tf City Attorney BN:vc enclosure cc: Lodi city Council Members Detective Matt Foster City Clerk Revenue »ager PO W6$3.10/TxTA.02V