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HomeMy WebLinkAbout95-16 - Amending Sections 5.96.010 and 5.96.045 of Chapter 5.96 of the Municipal Code of the City of Newport Beach, Pertaining to Adult BusinessesORDINANCE NO. 95 -16 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AMENDING SECTIONS 5.96.010 AND 5.96.045 OF CHAPTER 5.96 OF THE MUNICIPAL CODE OF THE CITY OF NEWPORT BEACH, PERTAINING TO ADULT BUSINESSES 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 of the people of the City of Newport Beach and visitors to the City; and WHEREAS, the City is empowered to enact regulatory ordinances protecting and promoting the general welfare, health and safety of the City of Newport Beach pursuant to its Charter and the Constitution and general laws of the State of California; and WHEREAS, the City Council of 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 in the vicinity • of these businesses 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; and 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 properties immediately surrounding established Adult Oriented Businesses. 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 Council of 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: -1- A. Crime rates are higher in residential areas surrounding Adult Oriented Businesses than in commercial or indus- trial areas surrounding Sexually Oriented Businesses; B. Areas within close walking distance 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 certain identified zones is appropriate because such zones include 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 an ordinance regulating these businesses, 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 Adult Oriented Businesses, while providing those who desire to patronize Adult Oriented Businesses an opportunity to do so in appropriate areas within the City; -2- 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 the • location of zoning which will separate such land uses from other incompatible uses; and 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 Council believes that persons who have been convicted of sex - related offenses have shown a propensity to commit such offenses and should not be permitted to operate Adult Oriented Businesses for two (2) years after such conviction. This is because the sexually oriented nature of the business creates an increased opportunity for the commission of sex - related offenses by • persons who have exhibited a propensity for the commission of such offenses; and WHEREAS, the City Council believes as true the documents and judicial decisions in the public record established and submitted in conjunction with this Ordinance which demonstrate that various operational practices of Adult Oriented Businesses (as that term is defined in Section 5.96.010 of the Newport Beach Municipal Code) increase criminal activity, including but not limited to sexually related criminal activity, and increase the likelihood of the transmission of diseases including but not limited to sexually transmitted diseases such as gonorrhea, syphilis, herpes, and acquired immune deficiency syndrome ( "AIDS ") and hepatitis -B; and WHEREAS, the City Council believes the following statements • are true, in part, based upon its understanding of the documents and judicial decisions in the public record established and sub- mitted with this Ordinance: A. Evidence indicates that dancers, models, entertainers, and other persons who publicly perform Specified Sexual Activities or publicly display Specified Anatomical Parts in Adult Oriented Businesses (as those terms are defined -3- in Section 5.96.010) (collectively referred to as "Performers ") have been found to engage in sexual activi- ties 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; D. Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interior cannot be seen from public areas of the establishment ( "Individual Viewing Areas ") regularly have been found to be used as a location for engaging in unlawful sexual • activity: E. Many Individual Viewing Areas have been found to contain "glory holes" in the walls joining abutting Individual Viewing Areas which are used by customers to facilitate sexual activity between the occupants of the abutting Individual Viewing Areas; F. Individual Viewing Areas have been found to be unsanitary due to the existence of semen, saliva, and blood on the walls and floors of the Individual Viewing Areas; G. Medical science has found that the AIDS and hepatitis -B viruses are carried in the semen of infected males and have a potential life span of 2 to 3 hours outside the human body; • H. The existence of semen on the walls and floors of the Individual Viewing Areas can facilitate the transmission of the AIDS and hepatitis -B viruses; I. The practice of individuals having anonymous and /or unprotected sexual relations in Individual Viewing Areas or poorly lit or unlit areas can facilitate the -4- transmission of the AIDS and hepatitis -B viruses as well as other sexually transmitted diseases; J. Poorly lit or unlit areas of Adult Oriented Businesses provide a location for people to engage in illegal sexual activities; • K. Police agencies have determined that some Adult Oriented Businesses and the operators thereof have been found to be directly engaged in (as well as aid and abet) criminal and illegal sexual activity. Such individuals also have been known to use aliases; L. Many jurisdictions have found that Adult Oriented Businesses generate excessive noise and disorderly conduct, particularly at the closing time of the Adult Oriented Business, which creates an adverse noise public safety impact on surrounding businesses and communities; and 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, based upon the evidence contained in the documents, judicial opinions, and other public records submitted with this Ordinance, the City Council finds as follows: A. The City has an interest in ensuring that individuals who operate Adult Oriented Businesses have not been convicted of certain criminal offenses, particularly sexually related offenses. The application requirements contained in Chapter 5.96 of the Newport Beach Municipal Code further that interest; • B. Requiring the presence of one (1) security guard for every 200 patrons at Adult Oriented Businesses providing live entertainment is likely to reduce the disorderly conduct and illegal activity observed to occur at Adult Oriented Businesses in other jurisdictions; C. Requiring Adult Oriented Businesses to close at 2:00 a.m. is likely to reduce the early morning criminal activity -5- • • occurring at and near Adult Oriented Businesses and is likely to eliminate the existence of excessive noise and disorderly conduct in and around the community in the early hours of the morning; D. The requirement that Adult Oriented Businesses only allow performances which are characterized by Specified Sexual Acts or future Specified Anatomical Parts such that patrons not be permitted within 6 feet of the Performers is likely to reduce the opportunities for illegal sexual activity to occur between Performers and patrons, and is particularly likely to reduce the opportunity for such illegal sexual activity to occur at the Adult Oriented Business; E. Requiring Performers in Individual Viewing Areas to be completely separated from patrons by a floor to ceiling plexiglass or other clear, permanent barrier is likely to reduce the opportunity for illegal sexual activity to occur between Performers and patrons and reduce the possibility of the transmission of sexually transmitted diseases between Performers and patrons; F. Requiring the entire interior portion of Individual Viewing Areas to be visible from aisles and public areas of the Adult Oriented Business is likely to reduce the opportunity for illegal sexual activity to occur within the Individual Viewing Area; G. Requiring areas within Adult Oriented Businesses to be minimally illuminated to the standards contained in Chapter 5.96 of the Newport Beach Municipal Code is likely to reduce the opportunity for the occurrence of illegal sexual activity in dark portions of Adult Oriented Businesses; H. Prohibiting any physical contact between Performers and patrons of Adult Oriented Businesses is likely to reduce the opportunity for the occurrence of illegal sexual activity between patrons and Performers; I. Prohibiting holes or openings between the interior spaces of Individual Viewing Areas is likely to reduce the -6- opportunity for the occurrence of illegal sexual activity between the occupants of Individual Viewing Areas; J. Prohibiting the occupancy of more than one person in an Individual Viewing Area at any time is likely to reduce the opportunity for the Individual Viewing Area to be • used for illegal sexual activity; K. Prohibiting patrons of Adult Oriented Businesses from offering payments or gratuities and prohibiting Performers from accepting the same is likely to reduce the opportunity for illegal sexual activity to occur between patrons and Performers; 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, on May 8, 1995 , the City Council conducted a public hearing on this Ordinance, and received testimony and information from the public and City staff. NOW, THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: Section 1: Section 5.96.010 of Chapter 5.96 of the Newport • Beach Municipal Code is hereby amended to read as follows: Sec. 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, -7- 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 Specified Sexual Activi- ties 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 relat- ing 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 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 -8- 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 opportunity 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 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 substantial 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 entertainment characterized by an emphasis on matters depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. "Adult Oriented Business" does not include those uses or -9- activities, the regulation of which is preempted by state law. For the purposes of this Section, a business establishment or concern has established the provision of products, merchandise, services or entertainment 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 entertainment which are characterized by an emphasis on matter depict- ing, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts. G. "Adult Theater ": a business establishment or 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 distin- guished or characterized by their emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts. -10- 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 participants 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 representation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter • depicting, describing, or relating to Specific 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. K. "Specified Anatomical Parts ": • 1. Less than completely and opaquely covered human genitals; pubic region; buttocks; or female breast below a point imme- diately above the top of the areola; or 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. -11- L. "Specified Sexual Activities ": 1. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed geni- tals, 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, copro- phagy, coprophilia, cunnilingus, fella- tio, 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 5. 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, • vaginal or anal irrigation; or 8. The presence of any person who performs, or appears in attire to the point where speci- fied anatomical parts are either not opaquely covered or minimally covered with devices commonly referred to as pasties and G strings or any other opaque covering, which while not -12- • • • exposing the areola, exposes any portion of the female breast at a point below the top of the areola and while covering the natal cleft and pubic area covers less than one inch on either side of the entire length of the natal cleft and two inches across the pubic area. Section 2: Section 5.96.045 of Chapter 5.96 of the Newport Beach Municipal Code is hereby amended to read as follows: Sec. 5.96.045 Enforcement and Revocation. A. Inspections. The Permittee shall permit officers of the City of Newport Beach, the County of Orange, and each of their authorized representatives to conduct unscheduled inspections of the premises of the Adult Oriented Business for the purpose of ensuring compliance with the law at any time the Adult Oriented Business is open for business or occupied. B. Revocation grounds. The City Manager may revoke an Adult Oriented Business Permit when he or she discovers that any of the following have occurred: 1. A violation of or failure to comply with any of the finding /requirements contained in Section 5.96.025 has occurred; 2. It is discovered that The application contains incorrect, false or misleading information; 3. The applicant is convicted of any felony or misdemeanor which is classified as a sex or sex related offense, or has been found to be in violation of the City's Zoning ordinance, any violation of the City's massage ordinance, or any violation of any other adult business ordinance of any other city, county, or state; 4. Any person has been convicted of a sex related offense as a result of his or her activity on the premises of the Adult Oriented Business; or -13- 5. There has occurred on the premises a violation of any provision of Section 5.28.041; 6. There has occurred on the premises a violation of any provision of Chapter 10.54. C. Revocation Notice. • Upon determining that the grounds for Permit revo- cation exist, the City Manager shall furnish written notice of the proposed revocation to the permittee. Such notice shall summarize the principal reasons for the proposed revocation, shall state that the permittee may appeal the decision within fifteen (15) calendar days of the posting or the post- marked date on the notice. The notice shall be delivered both by posting the notice at the location of the Adult Oriented Business and by sending the same, certified mail, return receipt requested and postage pre -paid, to • the permittee as that name and address appears on the Permit. Not later than fifteen (15) calendar days after the latter of the mailing or posting of the notice, the permittee may file an appeal of the City Manager's determination with the City Clerk. If the appeal is filed within fifteen (15) calendar days of the mailing or posting of the notice referenced above, the appeal hearing shall be provided as contained in Subsection D below. D. Appeal. Any person aggrieved by a decision to revoke a Permit under this Chapter may file an appeal with the City Clerk within ten (10) days of the • decision. The request for the appeal shall state the grounds upon which the appeal is based. Upon receipt, the City Clerk shall schedule an appeal hearing before the City Council or an appointed hearing officer and shall provide written notice of the time, date and location of the hearing to the applicant. The hearing shall be held no later than -14- • • 45 days from the date the .request for the appeal is received by the City Clerk. The City Council shall determine whether grounds for revocation of the Adult Oriented Business Permit exists and shall render their decision at the conclusion of the hearing or upon recommendation of the hearing unless the applicant otherwise consents to a continuance. E. Reapplication after Revocation. No person, corporation, partnership or member thereof or any other entity may obtain an Adult Oriented Business Permit for a business once its Permit has been revoked. Section 3: Should any section, subsection, clause, or provi- sion of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 4: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 8th day of May , 1995, and adopted on the 22nd day of May , 1995, by the following vote, to wit: ATTEST: "CLECITY AYES, COUNCILMEMBERS EDWARDS, WATT, DEBAY, HEDGES, COX, GLOVER, O'NEIL NOES, COUNCILMEMBERS NONE ABSENT COUNCILMEMBERS NONE MAYOR -15-