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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.
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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
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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
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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
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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
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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
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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:
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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.
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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
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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,
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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.
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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-
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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
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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
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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;
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(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
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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
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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.
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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
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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
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"~L/J~ / tI /81--IUVcc
CITY CLERK