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SR-8-B (34) e e 8B Of(' 9 198P CA:SSS:SC:bl Counc~l ~eetlng 12/9/80 Santa Monlca, Cal~fornla S?AFF REPOR'l' TO: Mayor and C1.ty Councll FRO}.'!: Cl ty Attorney SUBJECT: Proposed Adult Entertaln~ent Use Ordlnance I:::JTRODUCTIOH ThlS ordlnance, WhlCh would regulate the locat~on of sexually-orlented or "aduli.." entertalnnent uses wltnlh the Clty, lS presentee ~or lntroauctlon. The Councll dlrecte6. the ordlnance to be prepa~ed on November 26, 1~80. A noratorlum on fu~tner ?ermits for adult enterta1nment uses lS ~n effecti It wl11 exp~re On Apr11 14, 1981. A~mLYSIS 1. Background In recent_ years, Santa Monlca has experlenced a pro- Ilferatlon of massage parlors. ~umerous of these establlshnents are belleved to lnclude prostltutlon among the serVlce they offer to the publlC. The Clty now regulates massage Darlors by testlng masseuses for competency and by prescr1blng facllltles standards for massage Darlor onerators. ?hlS regulatloD, however, wll1 not prevent the concentratlon of massage parlors or the shlftlng of operatlons to other types of sexua11y-orlented buslnesses. Sexually-orlented mOVle theaters, book stores, ~odel StudlOS, and varYlng enterprlses are not proDlblted or zoned by the ~nlnlCl?al Code. As cornnerclal space becomes avallable, these uses may be expected to ~ncrease. ~.8 llte 0 ",-'" ~t- e e Some cltlzens are 1ntensely concerned over the effect and lntenslflcat10n of sexually-or1ented uses on the qual1ty of 11:e 1n resldentlal co~aun1t1es; 0: partlcular concern 1S the welfare of chlldren and the ?otentlal fo~ vlolence to women. The Pollce DepartMent has ldentlfled several crlme problems attendant to adult entertaln~ent. ~ot only are the actlv1tlEs frequently conducted In these lnstltutlons consldered harnfull they tend to attract more serlous, vlolent crl~e. After a DubI1C hearlng on October 14, 1980, at WD1Ch many such concerns were expressed, the CounCll lffiposed a noratorlun on adult entertalnnent uses. 2. Legallty of Ordlhance The constltutlonallty of local ordlnances reguIat1ng the 10catlon 0= "adult entertalnment establlshments" was upheld by t~e Unlted States Suprene Court 1n Young v. Amer1can Mln1 Theater, Inc., 427 U.S. 50 (lY76). See also, Walnut PrO?ertles, Inc. v. Lo~g Beach Clty Councll, 100 Cal.App.3d 10181 161 Cal. Rptr.411 (1980). Tne proposed Santa Monlca ordlnance lS based on the Detrolt ordlnance upheld In Young, and lS thus baslcally constitut1onal. ~he proposed ordlnance has an lndlrect lmpact on the sale of books, the showlng of movles, and other means of expreSSlon protected by the F1rst ~1endment. The courts have recognlzed t~e val1dlty of governmental regulatlons desplte 1rcldental 1npact on Flrst Amendment lnterestsl If: a. The governmental entlty has the paver to enact such laws. There 15 no doubL as to thlSi -2- e e regulatlon of adult entertalnment uses lS recognlzed by Government ~odc Sectlon 37101. See BrlX v. Clty of Rafael, 92 Cal.App.Jd 4/, 154 Cal.Rptr.647 (1979) ('\1assage Parlors). b. The regulatlon r.1ust further an lmportant or substantlal government lnterest. The Walnut Propertles case held t~at the 9reventlon of the concentratlon or clusterlng of adult enterta1nment buslnesses ln anyone area 15 a substantlal, valld governmental lnterest support1ng regulatlon. c. The ordlnance must not be almed at the sup~ress1on of free expresslon. There must De absolur.e neutrallty by government as to the pOlnt of V1ew expressed by regulated uses. The Supreme Court 1n ~oung held that II a zonlng ordlnance that merely speclfles where a theater may locate, and that does not reduce slgnlflcantly the nlli~ber or accesslblllty of theaters presentlng partlcular fllns, st1fles no expresslon." Sl!1Ce the proposed Santa Hon1ca ord1nance lS "content neutral," and 1S merely concerned w1th the concentrat1on of adult uses, It lS not 1nval1d because of suppresslon of free expresslon. d. The restr1ct1on 1nc1dentally placed on Flrst ~~endment freedoms must be no grEater than -3- e e necessary to further the ~nterest underlYlng the regulatlon. W~ere fundamental Plrst Amendment Ilbertles are at stake, courts wlll overturn regulatlons If there are "less drastlc means" avallable to accompllsh the government's purpose. ~hus, ln People v. Glaz0, 27 Cal.3d U41 (19BO), the Callfornla Supreme Court struck down an ordinance requlrlng closure of adult mOVle arcades durlng certaln hours as an lmpermlsslble restrlctlon on freedom of express~on. The Court felt that other, less lntruslve means of lnplementlng the govern~entTs stated ?urpose of prohlbltlng masturbatlon In such places could have been undertaken. However, thlS ground of attack has never been successfully applled to an adult use zonlng ordlnance. Our proposed ordlnance provldes ror termlnatlon of non- conformlng, eXlstlng adult uses after a perlod of amortLzatlon. The use of the Pollce power to ternlnate non-conformlng uses has long been recognlzed as constltutlonally ryer~lSslble. Hadacheck v. Sebastlan, 239 U.S.39~ (1~15); Metromedla v. San Dlego, 164 Ca1.Rptr. 510 (1980) (Bl11boards) i Wlgglness, Inc. v. Fruchtman, 482 i.Supp. 681 (S.D.:J.Y. 1979) (Massage Parlors). 3. Sectlon By Sectlon Analysls The ordlnance adds Cha?ter 7 to tne Zonlng Artlcle of the -4- e e MunlClpal Code. Its speclflc provlslons are as follows: The oralnance contalns a state~ent of purpose -- to avold the concentratlon wlthln the Clty of adult entertalnment uses, WhlCh are found to be assoclated wlth crlffie, have a detrlmental lnfluence on chlldren, contrlbute to an atmosphere WhlCh fosters lncreased vlolence agalDst WOillen, and have a generally Olsruptlve effect on adJacent resldentlal and commerclal nelghborhoods. The ordlnance would permlt adult entertalnment uses only In the C3 and C4 Dlstrlcts. Wlthln these dlstrlcts, adult uses are not permltted Wltnln 500 feet of any church, school or college, park, Ilbrary, olayground, or area zoned for resldentlal use, or wlthln 1,000 feet of anotner adult use. The oralnance speclfles n~ne types of establlshments as adult uses: bookstores, motlon plcture theaters, motels, mot1on plcture arcades, cabarets, ~assage parlors, model studlOS, sexual encounter centers, and sexual paraphernalla stores. Each of thf::se uses 1S def1ned as belng dlstlngulshed by an eNphasls on speclfled sexual conduct or speclfled anatOffilcal areas. There lS also provlslon for the Plannlng CO~llSSlon to flnd slIDllar uses to be wlthln the scope of the ord1nance. The terr'ls "speclfled sexual actlvltles II and "spec1fled anatoIDlcal areas" are speclflcally deflned In the ordlnance. The ordlnance prov1des an eXem?tlon for educatlonal instltutlons accredlted by approprlate state agenc1es. The ordlnance reqUlres non-confornlng adult entertaln~ent uses to be brought lnto compllance wlthln one year after tne effectlve date of the ordlnance. The Plannlng CO~~lsslonl through -:)- e e a Condltlonal Use Perffi1t procedure, may extend non-conformlng uses for up to an add1t1onal two years upon a oeterffilnat1on that the adult use 1S obl1gated by a wrltten lease of the prem1ses for more than one year from t~e effect1ve date of the ordlnance or that the contlnuatlon of the use 1S necessary to prevent undue f1nanClal hardsh1p. Where two adult uses are located w1thln 1,000 feet of one another, the ordlnance establ1shes that "flrst 1n t1ne lS flrst 1n r1ght," and the oldest establlshed use shall be ent1tled to contlnue In ltS present locat1on. Th1S sectlon of the ordlnance was drawn from a 51ffi1lar law 1n effect In Oakland. ALTERNATIVES The Councll nay ln~rocuce the oru1nance as drafted; lt nay modliy the ~ro?osed o~dinance, 9rov1ded the nodiflcat1ons do not undulv restr1ct F1rst Aruendnent r1ghts, or 1t mav reJec~ the orC1nance. RECO~~qEXDATION It 15 respectfully recomMended that the Councll lntroduce, after a pUbllC hear1ngl the proposed ord1nance as drafted. Prepared by: Stephen Shane Starkl Actlng C1ty Attorney Susan Carrolll Deputy C1ty Attorney -6- ~----"='--_.._---- ----~- - ---=:...--==-~-==--=--~~--,--;';-- - ........-..-----~-=----.>-;-......"":!_.......--- " ~ e e CA:SSS:SC:se Council Meeting 12/09/80 Santa Monlca, Californla ORDINANCE NO. 1193 (City Council Serles) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SA~TA MONICA REGULATING THE LOCATION OF ADULT E~TERTAIN- BENT USES. ~nIEREAS, contlnuation of eXlstlng concentratlons and the dlstlnct posslblllty of f~rther concentrat1ons of adult uses within the Clty of Santa Monlca wlll adversely effect the public peace, health, and safetYi and l^.TfIEREAS, tIle regl9.lat1on of adult uses 1S not adequately addres sed in the Santa :-1onlca aunic l!?al Code; and WHEREAS, the proposed ordinance is in the public interest conven1.snce and general welfare, in accordance with good zonlng practice and should be adopted; and \iHEREAS, a public hearlng was held before the Plannlng CommiSSlon on the proposed ordinance on June 2, 1980 and, following further evaluatlon by Staff, the Plannlng Co~ission on November 3, 1980, approved a motion recornnending to the Councll that it adopt the ordinance with speclf1.ed changes; and WHEREAS, the City Council, after a publlC hearing, con~ur~ wlth the recommendations-of the Planning COmMission, with certain modif1.cations: THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN: -- --=------==-=--- -~-=--~~--:;;,------ -,;---- e e SECTION 1. Chapter 7 of Article 9 of the Santa Hon1ca Hunic1pal Code entltled ADULT ENTERTAINHENT USES is hereby enacted to read as follows: Sect10n 9700. S~A~EMENT OF PURPOSE. There is presently a concentratlon of adult enterta1nment uses 1n the Clty of Santa Monica, the pr1mary purpose of WhlCh 15 the commercial explo1tat1on of sexually oriented activlties and displays. These uses have the effect of d~~eanlng human sexuallty and encouraging an att1tude of diSdain for wo~en, in particular, as coomercial< commodit~es. There is considerable local and natlonal concern with many of the effects of adult uses, including their detrlrnental influence on chlldren, increased crlminal activity associated with these uses, and the dlsruptive effects that adult uses have on adJacent residentlal and commercial neighborhoods. In the long run, the prevalence of such lorms of entertain- ment contributes to a social atmosphere which fosters increased v101ence agalnst women. These effects are signlficantly increased and inten- slfied when adult uses are so concentrated as to transforQ the character of a given area lnto an adult use distrlct Which draws people from outside the city to this form of entertainment. -2- e e It is deemed necessary to protect the publlC health, safety and welfare to control the locatlon and concentration of such uses. ThlS Cha~ter restrlcts the locatlons of adult uses to non- resldential areas and prohlbits thelr location in close proximity to one another or to facllltles ~ prlMarily devoted to use by children and-famllies, thereby limlting the absolute number of adult uses In the City and, in addltion, effectlvely preventlng the concentration of such uses. Section 9701. lillULT EN':'ERTAINMENT USES. Adult entertalnment uses shall be permltted only in the C3 and C4 Dlstrlcts. Wlthln the C3 and C4 Dlstricts, no person shall cause or permit the establlshment of any deflned adult use withln 500 feet of any church, public or private school or college, park, llbrary, playground, " or area zoned for residentlal use, or within 1,000 feet of another adult use. The establishment of an adult use shall lnclude the opening of such business as a new buslness, the reloca- tlon of such business, ~he conversion of an eXlsting business location to any adult use, or the granting of permits recruired of masseurs and masseuses WhlCh would have the effect of the establishment of an adult use or the lntenslfication of an eXlstlng adult use. -3- e e Section 9702. DEFINITIONS. A. For purposes of thlS ordinance, Adult Uses are: (1) Adult Bookstore An establlshment havlnq as a significant portion of its stock In trade book, flINS, ~aga- zines and other perlodicals WhlCh are dlstingulshed or characterized by an emphasis on dep1ctlng or descr1b1ng spec1fled sexual conduct or specifled anatomical areas. (2) Adult Motlon Picture Theater ~ open or enclosed buildlng customarily used for presenting motlon p1ctures or other visual material distinguisbed or character1zed by an enphasis on deplct1ng or describlng speci- f1ed sexual conduct or spec1fled anai:orllcal areas. (3) Adult Motel A motel whereln mater1al 15 presented which is distingulshed or characterlzed by an emphasls on depictlng or descrlbing speclfied sexual conduct or speclfied anatoMical areas. (4) Adult Motion Picture Arcade Any place to which the public is permitted or invlted wherein coin or slug-operated or electronically, electrlcally or mechanlcally controlled still or motlon p1cture machines, projectors, or other 1mage- -4- e e produc~ng devlces are maintalned to show lmages to f~ve or fewer persons per maChlTIe at anyone time, and where the lmages 50 dlsplayed are dlS- tinguished or characteri7ed by an emphasis on depicting or descrlbing speclfled sexual conduct or speclfled anatomical areas. (5) Adult Cabaret A nlghtclub, theater, or other establlshment WhlCh features live performances by topless and/or bottomless dancers, "go-go" dancers, exotlc dancers, strlppers, or similar entertalners, where such per- formances are dist~ngulshed or characterized by an emphasis on speclf1ed sexual conduct or speclfled anatom~cal areas. (6) Massage Parlor Any place where, for any form of conslderatlon or gratuity, massage, alcohol rub, adminlstratlon of fomentations, electric or magnetic treatments, or any other treatment or manlpulatlon of the human body occurs where such treatment or manipulation lS the prlnc1pal business of the establishment and is not part of a recognlzed therapeut1c regime. (7) Adult Model Stud10 Any place where, for any form of conslderation or gratuity, flgure models who d1splay spec1f1ed -5- e e anatomical areas are provlded to be observed, sketched, drawn, palnted, sculptured, photo- graphed, or simllarly deulcted by persons paYlng such conslderatlon or gratuity. (8) Sexual Encounter Center Any business, agency, or person who, for any form of consideratlon or gratulty: provides a place where three or more persons, not all menbers of the sa~e ffu~lly, may congregate, assemble or associate for the purpose of engaglng in specified sexual conduct or exposing s~ecified anatonical areas. (9) Sexual Paraohernalla Store _ L Retall store specializlng In the sale of paraphernalia, devices, or equlpment distlngulshed or characterlzed by an emphasis on depleting or descrlblng speclfled sexual conduct or used in connection with specified sexual conduct. (IO) Such other uses or actlvities as the Planning COIDmlssion may find siMilar to those llsted and distlngulshed by an emphasls on depicting, describlng or providing speclfied sexual conduct or specified anatomical areas. B. For purposes of thlS sectlon Speclfled Sexual Actlvities are: (1) Hu~n genltals in a state of sexual stlmulation or arol..! sal; -6- : e e (2) Acts of human Masturbat~on, sexual ~ntercourse or sodomy; or (3) Fondling or other erotlc touching of human genltals, pUblC reglon, buttock or feMale breasts. C. For purposes of this sectlon Speclfled Anatomlcal Areas are: (1) Less than completely and opaquely covered (a) human genitals, pUblC reg~on; (b) buttock; and (c) female breast below a pOlnt ~n~edlately above the top of the areola; or (2) ffuman male gen~tals, less than completely and opaquely covered, or human male genitals in a dlS- cernably turgld state, even lf completely and opaquely covered. Section 9703. EXEHPTION. The pravls~ons of th~s Chapter shall not apply to .. . educational instltutions accredlted by approprlate state agencles. Section 9704. AMORTIZATION OF NON-CONFOfu~ING USES. Wlthln one year after the effectlve date of Sectlons 9700, 9701 and 9702, all non-conforming adult entertaln- ment uses as deflned in Section 9702 shall be brought lnto full compliance with thlS Chauter except that such activities may continue for up to an addltlonal two years -7- e e u~on the grant1ng of a Condlt1onal Use Perm1t, ~ursuant to the CONDITIO~JAL USE PROCEDURE set forth at Sect10n 9148 of the Mun1C1Dal Code, and upon a determination that the adult use lS oDl~gatec) by wr1tten lease of tne pre~lses exceed1ng one year from the effectlve date o~ Sect10ns 9700, 9701, and 9702 or that the adult use involves 1nvest~ent Q~ money 1n leasehold or 1Dprovements such that the longer per~od 1S necessary to ~revent undue f1nanclal hardshlp. ror purposes of this sect1on, in the case of two adult uses located wltnln 1,000 feet of one another, that use w~ich was flrst lawfully establlsned and 1S otQerW1Se ln conformity w1th th1S ~ha?ter, shall be ent1tlec to contlnue in lts nresent locaLlon. SZCTION 2. Any provision of the Santa Monlca ~1unlclpal Code or append1ces thereto lnconslstent therew1th, to the extent of such lnconS1SLencies and no further, are hereby repealed or ~odlfied to that extent necessary to effect the prov1slons of th1S ord1nance. . SECTION 3. If any sectlon, subsectlon, sentence, clause, or phrase of th1S ordlnance lS for any reason held to be lnvalld or unconstitutional by a decis10n of any court of any competent jur1sd1ct1on, SQch declslon shall not affect the val~dlty of the remaining port1ons of the ordlnance. ~he Clty Council hereby declares that It would ~~V8 passed th1S ordlnance and each an~ every sectlon, subsect1on, sentence, clause, or phrase not declared 1nvalld or unconstltutlonal without regard to whether any port1on of the ordinance would be subs2quently declared invalld or l1nconstltutlonal. -8- . ~ ' .. e e S~CTION 4. The Mayor shall slgn and the Clty Clerk shall attest to the passage of thls ordlnance. The Clty Clerk shall cause the same to be publlshed once In the offlcial newspaper 15 days after lts adoptlon. The ordlnance shall become e~fectlve after 30 days from lts adoptlon. APPROVED AS TO FOID1: ~~~S~~ Actlng Clty Attorney '" -9- - -- - -....- L~ ........-, _ .' J!' e e ADOPTED AND APPROVED THIS 14th DAY OF January 1 981 J \:&:</-1. l' !/?v///J/4. u~.;~lR' jldL;~L_~G~_<~ I HEREBY CERTIFY THAT THE FOREGOING ORDINANCE) No.__ 1193 I WAS DULY AND REGULARLY INTRODUCED AT A MEETING OF THE CITY COUNCIL ON THE 9th DAY OF December ) 1980; THAT THE SAID ORDI~JANCE WAS THEREAFTER DOlY ADOPTED AT A MEETING OF THE CITY COUNCIL ON THE 14th DAY OF January 1981 BY THE FOllOWING COUNCIL VOTE: AYES: COUNCIU1Er-iBERS: Vannatta Gold\'Jay~ Jennlngs, Reed Scott and Mayor Bambrlck NOES: ~. COUNCILMEMBERS: None . ABSENT: COUNCILMEMBERS: ~hoden ~.TTEST : t2 L,. '7 / /1-' {/I. . "~L/J~ / tI /81--IUVcc CITY CLERK