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HomeMy WebLinkAbout95-13 - Amending Chapter 10.54 and Section 5.96.010 of the Code of the City of Newport Beach Indecent ExposureORDINANCE NO. 95 -13 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AMENDING CHAPTER 10.54 AND SECTION 5.96.010 OF THE CODE OF THE CITY OF NEWPORT BEACH INDECENT EXPOSURE • WHEREAS, the City Council of the City of Newport Beach wishes to promote the City of Newport Beach's great interest in protecting and preserving the quality of the residential, commercial and industrial areas of the City, and the quality of life through effective land use planning; and WHEREAS, the City of Newport Beach believes as true the studies conducted in the cities of Austin, Texas; Biloxi, Mississippi; Garden Grove, California; Indianapolis, Indiana; Los Angeles, California; and Phoenix, Arizona which show Adult- Oriented Businesses cause secondary impacts which degrade the areas of the City in which they are located, cause a blighting effect on the • City, and increase crime in general., and sex related crimes in particular, in the vicinity of the Adult Oriented Business; and WHEREAS, in Barnes v. Glen Theaters, Inc. (1991) 501 U.S. 115 L.Ed.2d 504, the court found it to be constitutionally permissible to prohibit public nudity, including public nudity within Adult Oriented Business establishments, in part due to the secondary effects associated with public nudity in Adult Oriented Business establishments which secondary effects include, but are not limited to the increase in prostitution, increase in sexual assaults, and the attraction of other criminal activity; and is WHEREAS, prior to the adoption of this Ordinance, the City reviewed detailed studies prepared by other jurisdictions regarding the detrimental social and economic effects on persons and proper- ties immediately surrounding established Adult Oriented Businesses which include Adult Oriented Business establishments which permit and /or provide public nudity or the performance by persons who disrobe to the point of only being clad in pasties and a "G" Fs2 \261 \066751 -0034 %2140752.1 a04/10/95 • • string. These studies included those prepared by the cities of Austin, Texas; Biloxi, Mississippi; Indianapolis, Indiana; Garden Grove, California; Los Angeles, California; and Phoenix, Arizona; and WHEREAS, the City of Newport Beach believes the following statements are true, in part based upon its understanding of the experiences of cities such as Austin., Texas; Biloxi, Mississippi; Garden Grove, California; Indianapolis, Indiana; Los Angeles, California; and Phoenix, Arizona: A. Crime rates are higher in residential areas surrounding Adult Oriented Businesses than in commercial or indus- trial areas surrounding Adult Oriented Businesses; B. Areas within close proximity of single and multiple family dwellings should be free of Adult Oriented Businesses; C. Adult Oriented Businesses should not be located in areas of the City which are in the vicinity of residential uses, religious institutions, parks and schools; D. The image of the City of Newport Beach as a pleasant and attractive place to reside will be adversely affected by the presence of Adult Oriented Businesses in close proximity to residential uses, religious institutions, parks and schools; E. The existence of Adult Oriented Businesses in close proximity to residential areas has been shown in some cities to reduce the property values in those residential areas; F. The City Council believes that allowing Adult Oriented Businesses in those areas ;permitted in Chapter 20.74 of the City Code is appropriate because such zones include FS2 \261 \066751 -0034 \2140752,1 a04/10/95 -2- • • • ample accessible real estate including acreage in all stages of development from raw land to developed, industrial warehouse, and shopping space that is easily accessible by freeways, highways and roads; G. Without the adoption of this Ordinance, Adult Oriented Businesses might be able to locate anywhere within the City by right, requiring no permit other than a business license to operate; H. A reasonable regulation of the location of Adult Oriented Businesses protects the image of the community and its property values and protects its residents from the adverse secondary effects of such Adult Oriented Businesses, while providing those who desire to patronize Adult Oriented Businesses an opportunity to do so in appropriate areas within the City; I. Regulations for Adult Oriented Businesses should be developed to prevent deterioration and /or degradation of the vitality of the community before the problem exists, rather than waiting for a problem to be created; J. Adult Oriented Businesses should be regulated by develop- ing zoning which will separate such land uses from other incompatible uses; FS2 \261 \066751 -0034 \2140752.1 a04/10/95 -3- K. Crime rates significantly increase when Adult Oriented Businesses are established within close proximity to other Adult Oriented Businesses; L. The City Council believes that prohibiting public nudity • will, to some extent, reduce those secondary effects shown to be created, in part, by Adult Oriented Busi- nesses which provide or permit public nudity. WHEREAS, the aforementioned studies show that sex - related offenses are included within the category of secondary effects caused by unregulated or underregulated Adult Oriented Businesses; and WHEREAS, the City of Newport Beach believes the following statements are true, in part, based upon its understanding of the documents and judicial decisions in the public record established • and submitted with this Ordinance: A. Evidence indicates that some dancers, models, entertain- ers, and other persons who publicly perform Specified Sexual Activities or publicly display Specified Anatom- ical Parts in Adult Oriented Businesses (as those terms are defined in Section 5.96.010) (collectively referred to as "Performers ") have been found to engage in sexual activities with patrons of Adult Oriented Businesses on the site of the Adult Oriented Business; B. Evidence has demonstrated that Performers employed by Adult Oriented Businesses have been found to offer and • Provide private shows to patrons who, for a price, are permitted to observe and participate with the Performers in live sex shows; C. Evidence indicates that Performers at Adult Oriented Businesses have been found to engage in acts of prosti- tution with patrons of the establishment. FS2 \261 \066751 -0034 \2140752.1 a04/10/95 -4- WHEREAS, while the City Council desires to protect the rights of those who provide adult oriented entertainment, it desires to do so in a manner which decreases, to the greatest extent feasible, the undesirable secondary effects associated with such entertain- ment; and • WHEREAS, in prohibiting public nudity in Adult Oriented Businesses, the City Council does not intend to proscribe the communication of erotic messages or any other communicative element or activity, but rather only to prohibit public nudity due to the secondary impacts associated with such public nudity; and WHEREAS, the City Council also finds that it has a substantial public interest in preserving order and morality, and that such interest is furthered by a prohibition on public nudity; and WHEREAS, while the City Council of the City of Newport Beach • desires to protect the rights conferred by the United States Constitution to Adult Oriented Businesses, it does so in a manner that ensures the continued and orderly development of property within the City and diminishes, to the greatest extent feasible, those undesirable secondary effects which the aforementioned studies have shown to be associated with the development and operation of Adult Oriented Businesses; and WHEREAS, it is not the intent of the City in adopting this Ordinance to suppress any activities protected by the First Amendment, but rather to enact a content neutral Ordinance which addresses the secondary effects Adult Oriented Businesses have on the City; and • WHEREAS the City Council y u is aware of the recent increase in the establishment of businesses which provide Adult Oriented entertainment in Orange County; and WHEREAS, as the City Code is currently drafted, an Adult Oriented Business could obtain a permit to allow public nudity FS2 \261 \066751 -0039 \2190752.1 a04/10/95 -5- • C7 • within 15 days of the date the City first becomes aware of the business's intent to allow public nudity; and WHEREAS, due to the short time periods established in the City Code for the permitting of an Adult Oriented Business, an ordinance prohibiting public nudity would not become effective prior to the City being forced to suffer the secondary effects of increased prostitution, sexual assault and the spread of life threatening communicable diseases caused by the establishment of an Adult Oriented Business which permits or provides public nudity; and WHEREAS, Charter Sections 412 and 416 provide that an ordinance adopted by the City Council becomes effective immediately when the ordinance is adopted to preserve the public peace, health and safety; and WHEREAS, the City Council finds that public peace, health and safety are jeopardized by being forced to suffer the aforementioned secondary effects due to the imminent possibility that a business creating those secondary effects through the presentation of public nudity could commence operation prior to the effective date of an ordinance prohibiting public nudity; and WHEREAS, the City Council therefore adopts this ordinance as an urgency measure pursuant to Charter Sections 412 and 416; NOW, THEREFORE, the City Council of the City of Newport Beach hereby ordains as,follows: FS2 \261 \066751- 0034 \2140752.1 a04/10/95 - 6- Section 1: Section 10.54.010 of the Code of the City of Newport Beach is hereby amended to read in its entirety as follows: The intent and purpose of this chapter is to guarantee that the parks, playgrounds and beaches owned, • operated and maintained by the City of Newport Beach are operated and maintained for the use, benefit, recreation and enjoyment of all citizens and residents of the City as well as to eliminate, to the greatest extent possible, the secondary effects associated with the presentation of nudity in Adult Oriented Establishments. The City Council finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said parks, playgrounds and beaches be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of said parks, playgrounds and beaches can only be obtained through imposition of regulations regarding activities • thereon; the periods of some persons utilizing said parks, playgrounds and beaches by appearing thereon without clothing and with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said parks, playgrounds and beaches by causing many persons to leave and others not to use said parks, playgrounds and beaches; that such conduct and behavior imposes an extraordinary unusual burden on City employees charged with the maintenance of said parks, playgrounds and beaches and public safety personnel who are diverted from fulfilling their primary obligation to protect the health, safety and welfare of • the public at large; that the presence of persons who are unclothed and exposed to public view in or on public rights -of -way, parks, playgrounds and beaches, or on any private property open to public view from public parks, playgrounds, beaches or other public ways tends to discourage the use and enjoyment of said public parks, playgrounds, beaches and public ways of the City, and FS2 \261 \066751- 0034 \2140752.1 a04/10/95 -7- • • • creates a nuisance and is offensive to members of the public who wish to use and enjoy said public parks, playgrounds, beaches and places and who are unwillingly exposed to such conduct; that the presentation of nude entertainment in Adult Oriented Business establishments results in secondary effects which include the prolifera- tion of prostitution, the increase in sexual assaults, and increase in other crimes; that the prohibition of nudity in Adult Oriented Business establishments tends to reduce the existence of such secondary effects; and, based upon the foregoing findings, this chapter will protect the public health, safety and welfare. FS2 \261 \066751 -0039 \2190752.1 a04/10/95 -8- Section 2: Section 10.54.020 is hereby amended to read in its entirety as follows: Sec. 10.54.020 Prohibition. • It shall be unlawful for any person to appear, bathe, sunbathe, walk, or be on any public park, play- ground, beach, or in the water adjacent thereto, or on any other public land, or on any private property open to public view from any public beach, playground, park, public place or public right -of -way, or in any Adult Oriented Business as that term is defined in Section 5.96.010 of this Code, in such a manner so as to know- ingly and intentionally: (a) expose his or her genitals, pubic hair, natal cleft, perineum, anal region or pubic hair • region; or (b) expose any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum, anal region, nipple and /or areola of the female breast or pubic hair region; (c) expose the nipples and /or areola of the female breasts except as necessary while engaging in the breast feeding of an infant under the age of 2 years old; or • (d) allow any person to engage in any of the activities described subsections (a) -(c) above in an Adult Oriented Business when such person has ownership or managerial control over the Adult Oriented Business. Section 3: Section 5.96.010 is hereby amended to read in its FS2 \261 \066751 -0034 \2140752.1 a04/10/95 -9- entirety as follows: 5.96.010 Definitions. A. "Adult Bookstore": Any establishment, which as a regular and substantial course of conduct, displays and /or distributes Adult • Merchandise, books, Periodicals, magazines, photographs, drawings, sculptures, motion pictures, videos, slides, films, or other written, oral or visual representations which are distinguished or characterized by an emphasis on a matter depicting, describing or relating to Speci- fied Sexual Activities or Specified Anatomical Parts. (See "Adult Oriented Business" for definition of regular and substantial portion of.its business.) B. "Adult Cabaret ": A nightclub, bar, lounge, restaurant or similar establishment or concern which features as a regular and substantial course of conduct, • any type of live entertainment, films, motion pictures, videos, slides, other photographic reproductions, or other oral, written, or visual representations which are characterized by an emphasis on matter depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. C. "Adult Hotel /Motel ": A hotel or motel, which as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with closed- circuit television or other medium, material which is distinguished or characterized by the emphasis on matter depicting, describing or relating to Specified • Sexual Activities or Specified Anatomical Parts and /or which rents, leases, or lets any room for less than a 12- hour period and /or rents, leases or lets any room more than once in a 24 -hour period and /or which advertises the availability of any of the above. D. "Adult Model Studio ": Any premises where there FS2 \261 \066751- 0034 \2140752.1 a04/10/95 _10- is furnished, provided or procured a figure model or models who pose in any manner which is characterized by its emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts where such model(s) is being observed or viewed by • any person for the purpose of being sketched, Painted, drawn, sculptured, photographed, filmed, or videotaped for a fee, or any other thing of value, as a considera- tion, compensation, or gratuity for the right or oppor- tunity to so observe the model or remain on the premises. Adult Model Studio shall not include any Live Art Class or any studio or classroom which is operated by any public agency, or any private educational institution authorized to issue and confer a diploma or degree under Section 94300 and et seq. of the Education Code. E. "Adult Motion Picture Arcade ": Any business • establishment or concern containing coin or slug operated or manually or electronically controlled still, motion picture or video machines, projectors, or other image producing devices that are maintained to display images to an individual in Individual Viewing Areas when those images are distinguished or characterized by an emphasis on matter depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. F. "Adult- Oriented Business ": Any business establishment or concern which as a regular and substan- tial course of conduct performs as an Adult Bookstore, Adult Theater, Adult Motion Picture Arcade, Adult • Cabaret, Stripper, Adult Model Studio, Adult Motel /Hotel; any business establishment or concern which as a regular and substantial course of conduct sells or distributes Sexually Oriented Merchandise or Sexually Oriented Material; or any other business establishment or concern which as a regular and substantial course of conduct offers to its patrons products, merchandise, services or PS2 \261 \066751- 0034 \2140752.1 a04/10/95 - 11- entertainment characterized by an emphasis on matters depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. "Adult Orient- ed Business" does not include those uses or activities, the regulation of which is preempted by state law. • 'Adult Oriented Business" shall also include any business establishment or concern which, as a regular and substan- tial course of conduct provides or allows performers, models, actors, actresses, or employees to appear in any place in attire which does not opaquely cover Specified Anatomical Parts. For the purposes of this Section, a business establishment or concern has established the provision of products, merchandise, services or enter- tainment characterized by an emphasis on matters depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts as a regular and substantial course of conduct when one or more of the • following conditions exist: 1. The area devoted to Adult Merchandise and /or Sexually Oriented Material exceeds more than 25 percent of the total display or floor space area open to the public. 2. The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on Specified Sexual Activity or Specified Anatomical Parts at least four times in any month. 3. The regular and substantial course of conduct • of the business consists of or involves the sale, trade, display or presentation of services, products, or enter- tainment which are characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts. G. "Adult Theater ": A business establishment or FS2 \2e1\066751- 0034 \2140752.1 a"4 /10 /95 —12— concern which, as a regular and substantial course of conduct, presents live entertainment, motion pictures, videos, slide photographs, or other pictures or visual reproductions which are distinguished or characterized by their emphasis on matter depicting, describing, or relat- ing to Specified Sexual Activities or Specified Anatom- ical Parts. H. "Live Art Class ": Any premises on which all of the following occur: there is conducted a program of instruction involving the drawing, photographing, or sculpting of live models exposing Specified Anatomical Parts; instruction is offered in a series of at least 2 classes; the instruction is offered indoors; an instructor is present in the classroom while any parti- cipants are present; and pre- registration is required at least 24 hours in advance of participation in the class. • I. "Sexually Oriented Material ": Any element of Sexually Oriented Merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, or other written, oral, or visual represen- tation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts. J. "Sexually Oriented Merchandise": Sexually oriented implements and paraphernalia, such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado- masochistic activity. F82 \261 \066751- 0034 \2140752,1 a04/10/95 - 13 - K. "Specified Anatomical Parts ": Less than completely and opaquely covered human genitals; pubic region; buttocks or the female breasts below a point immediately above the top of the areola; or human male genitals in a discernibly turgid state, even if com- pletely and opaquely covered. L. "Specified Sexual Activities ": 1. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory function in the context of a sexual relationship, any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerastia; or 2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or 3. Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or 4. Fondling or touching of nude human genitals, pubic region, buttocks or female breast; or S. Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or 6. Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or 7. Human excretion, urination, menstruation, Fs2 \261 \066751 -0034 \2140752.1 a04 /10 /95 — 14 — C • vaginal or anal irrigation; or 8. The removal of clothing to the point where specified anatomical parts are either not opaquely covered or minimally covered with devices commonly referred to as pasties and G strings or equivalent clothing. Section 4: That if any section, subsection, sentence clause or phrase of this Ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one to more sections, subsections, sentences clauses and phrases be declared unconstitutional. Section 5: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 10th day of April , 1995, and adopted on the 10th day of April 1995, by the following vote, to -wit: V D %ww FMW ry FA i AYES, COUNCILMEMBERS EDWARDS, WATT, DERRY, HEDGES, COX, GLOVER, O'NEIL NOES, COUNCILMEMBERS NONE ABSENT, COUNCILMEMBERS NONE MAYOR FS2 \261 \066751- 0034 \2140752.1 a04/10/95 _15-