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"
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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
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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;
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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.
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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
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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:
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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
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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.
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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
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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
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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
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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
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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.
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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,
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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
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AYES, COUNCILMEMBERS EDWARDS, WATT, DERRY,
HEDGES, COX, GLOVER, O'NEIL
NOES, COUNCILMEMBERS NONE
ABSENT, COUNCILMEMBERS NONE
MAYOR
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