SR-703-016
'"Ie
OCT 1 1 2005
F:\atty\muni\strpts\mjm\adultretailsupp.doc
City Council Meeting 10-11-05
Santa Monica, California
SUPPLEMENTAL STAFF REPORT
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Ordinance Amending Chapter 9.44 of the Santa Monica Municipal Code
Relating to Sexually-Oriented Businesses
I ntrod uction
At its last meeting, the City Council continued Agenda Item 7-D which was a proposal
from staff to introduce for first reading an ordinance amending the Municipal Code
chapter regulating adult or sexually oriented businesses. Staff has made minor
changes in the proposed ordinance, and this supplemental report summarizes those
changes.
Background
Prior to the last meeting, legal staff reviewed written c'omments made by community
representatives and suggestions from City staff. The community members suggested
revising the proposed definitions to lower the percentage of sexually-oriented
merchandise in a retail establishment requisite to classify the business as adult
oriented. Additionally, they suggested revising the amortization language to make it
more precise and adding a provision which would prohibit persons with arrest records
1
'lC-
OCT 1 1 2005
from obtaining a business' license. City Licensing' staff proposed establishing a
requirement for a police permit and standardizing terminology in the ordinance.
Discussion
Legal staff has considered the proposals and comments received to date and made
some of the requested changes. Based on legal concerns, others have not been made.
As suggested, the amortization language has been changed to meet concerns about
vagueness and the amortization date has been changed. The proposed ordinance now
more precisely establishes the factual showing that an owner/operator of a sexually-
oriented business must make to extend the time for a non-conforming business to
operate. Also, terminology utilized in the ordinance has been standardized by the
omission of the term "permit" and uniform use of the term "license."
The percentages were not changed in the revised proposed ordinance. Case law
makes that change legally risky, particularly on the factual record before the City
Council. For the same reasons, no police permit requirements and criteria related to
arrest records have been added to the revised proposed ordinance. The Council may
wish to consider such requirements and standards in conjunction with proposed
updates to the City's massage ordinance based, in part, on the vastly different factual
record.
Recommendation
It is recommended that the Council introduce the revised proposed ordinance for first
reading.
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PREPARED BY: Marsha Jones Moutrie, City Attorney
Barry Rosenbaum, Senior Land Use Attorney
ATTACHMENT: Revised Proposed Ordinance
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f:\atty\muni\laws\mjm\adultretailrevised. doc
City Council Meeting 10-11-05
Santa Monica, California
(CCS)
ORDINANCE NUMBER
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING CHAPTER 9.44 OF THE SANTA MONICA MUNICIPAL
CODE RELATING TO SEXUALLY-ORIENTED BUSINESSES
WHEREAS, Santa Monica is a small, densely populated city in which many
residents live in very close proximity to businesses and commercial thoroughfares; and
WHEREAS, the City Council wishes to protect residents' quality of life by, among
other things, ensuring to the extent possible that businesses do not operate in a way
which unduly disrupts or threatens residential neighborhoods; and
WHEREAS, Santa Monica is the home of thousands of families which include
children and youth; and
WHEREAS, the City Council wishes to protect the safety, welfare and quality of
life of all Santa Monicans, particularly children and others who are less able to protect
themselves; and
WHEREAS, in addition to being a residential community, Santa Monica is also a
visitor-serving enteri'ainment center and home to a diverse business community; and
WHEREAS, the Council wishes to recognize and protect the rights of all business
owners; and
1
WHEREAS, sexually-oriented businesses have secondary impacts on
surrounding neighbors and their quality of life; and
WHEREAS, the City Council hereby takes legislative notice of the existence and
content of the following studies concerning the adverse secondary side effects of
sexually-oriented businesses in other cities: Garden Grove, California (1991); Tucson,
Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City,
Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont,
Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier,
California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); and Los Angeles,
California (1977); St Paul, Minnesota (1987); Newport News, Virginia (1996); Times
Square, New York (1994); New York, New York (1994); and
WHEREAS, the City Council finds that these studies are relevant to the problems
addressed by the City in enacting this ordinance to regulate the adverse secondary side
effects of sexually-oriented businesses; and
WHEREAS, the City Council finds that these studies provide convincing evidence
that: (1) sexually-oriented businesses are linked to increases in the crime rates in the
businesses' vicinity and in surrounding areas for crimes such as narcotics use and
distribution, prostitution, pandering, and violence against persons and property; (2) both
the proximity of sexually-oriented businesses to sensitive land uses and the
concentration of sexually-oriented businesses tend to result in the blighting and
deterioration of the areas in which they are located lowering property values; (3) the
location and concentration of sexually-oriented businesses also results in significant
negative aesthetic impacts upon neighboring properties and the community as a whole;
2
(4) the proximity and concentration of sexually-oriented businesses adjacent to
residential, recreational, religious, educational and other sexually-oriented business
uses can cause residents and businesses to relocate; and
WHEREAS, in developing this Ordinance, the City Council is mindful of legal
principles relating to regulation of adult businesses, and the City Council does not
intend to suppress or, infringe upon any expressive activities protected by the First
Amendment of the United States and California Constitutions but instead desires to
enact reasonable time, place, and manner regulations that address the adverse
secondary effects of adult businesses. The City Council has considered decisions of the
United States Supreme Court regarding local regulation of adult businesses, including
but not limited to: City of Littleton. Colorado v. ZJ Gifts D 4,541 U.S. 744 (2004); City of
Los Angeles v. Alameda Books, 535 U.S. 425 (2002); City of Erie v. Pap's A.M.
("Kandyland"), 529 U.S. 277 (2000); FW/PPBS, Inc. v. City of Dallas, 493 U.S. 215
(1990); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); and Younq v.
American Mini Theaters, Inc., 427 U.S. 50 (1976); decisions of the United States Court
of Appeals for the Ninth Circuit, including but not limited to: Gammoh v. City of La
Habra, 395 F.3d 1114 (9th Cir. 2005), ptn. for rehearing denied and opinion amended
402 F.3d 875; Dream Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004);
World Wide Video v. City of Spokane; 368 F.3d 1186 (9th Cir. 2004); Center for Fair
Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Diamond v. City of
Taft, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531 U.S. 1072 (2001); Isbell v. City of
San Dieqo, 258 F.3d 1108 (9th Cir. 2001); YounQ v. City of Simi Vallev, 216 F.3d 807
(9th Cir. 2000), cert. denied 531 U.S. 1104 (2001); Lim v. City of Long Beach, 217 F.3d
3
1050 (9th Cir. 2000), cert. denied 121 S.Ct. 1189 (2001); Baby Tam & Co" Inc. v. City
of Las Vegas C'Baby Tam I"), 154 F.3d 1097 (9th Cir. 1998); Baby Tam :& Co.. Inc. V.
City of Las Veoas ("Baby Tam II"), 199 F.3d 1111 (9th Cir. 2000); Baby Tam & Co" Inc.
V. City of Las Veqas ("Baby Tam III"), 247 F.3d 1003 (9th Cir. 2001); 4805 Convoy. Inc.
v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); TopanQa Press. Inc. V. City of Los
Anoeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied 511 U.S. 1030 (1994); Kev. Inc. v.
Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio V. City of Kent, 163 F.3d 545
(9th Cir. 1998), cert. denied 529 U.S. 1053 (2000); Bryan H. Crawford V. Daniel E.
Lungren, 96 F.3d 380 (9th Cir. 1996); Ellwest Stereo Theatres, Inc. v. Paul Wenner, 681
F.2d 1243 (9th Cir. 1982); Tollis. Inc. v. San Bernardino County, 827 F.2d 1329 (9th Cir.
1987); Walnut Properties. Inc. V. City of Whittier, 861 F.2d 1102 (9th Cir. 1988); several
California cases, including but not limited to: Tily B., Inc. v. City of Newport Beach, 69
Cal.App.4th 1 (1998); City of National City v. Wiener, 3 Cal.4th 832 (1993), cert. denied
510 U.S. 824; People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); Department of
Alcoholic Beveraoe Control v. Alcoholic Beveraoe Appeals Board of California
("Vicary"), 99 Cal.App.4th 880 (2002); City ofValleio v. Adult Books, 167 Cal.App.3d
1169 (1985), cert. denied 475 U.S. 1064 (1986); Wayne C. Berry v. City of Santa
Barbara, 40 Cal.App.4th 1075 (1995); City of Stanton V. Cox, 207 Cal.App.3d 1557
(1989); J.L. Thomas V. County of Los Angeles, 232 Cal.App.3d 916 (1991) ; and other
federal and state cases, including but not limited to: SOB. Inc. v. County of Benton, 317
F.3d 856, 863 (8th Cir. 2003); Lakeland Lounge v. City of Jacksonville, 973 F.2d 1255
(5th Cir. 1992), cert. denied 507 U.S. 1030 (1993); International Eateries V. Broward
County, 941 F.2d 1157 (11th Cir. 1991), cert. denied 503 U.S. 920 (1992); Lady J.
4
Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); Executive Arts v.
City of Grand Rapids, 391 F.3d 783 (6th Cir. 2004); Z.J. Gifts 0-4, L.L.C. v. City of
Littleton, 311 F.3d 1220 (10th Cir. 2002); Encore Videos, Inc. v. City of San Antonio, 330
F.3d 288, (5th Cir. 2003), as amended 352 F.3d 938 (5th Cir. 2003); Williams v. Attorney
General of Alabama, 378 F.3d 1232 (11th Cir. 2004); Doctor John's. Inc. v. City of Sioux
City, Iowa, 305 F.Supp.2d 1022 (N.D. Iowa 2004); Wil-Kar, Inc. v. VillaQe of
Germantown, 153 F.Supp.2d 982 (E.D. Wis. 2001); State v. Hanna, 901 SO.2d 201
(Fla.App. 5 Dist.); and Z.J. Gifts 0-2, L.L.C. v. City of Aurora, 93 P.3d 633 (Colo.App.
2004); and
WHEREAS, based on the foregoing, the City Council finds and determines that
special regulation of sexually-oriented businesses is necessary to ensure that their
adverse secondary side effects will not contribute to an increase in crime rates, to the
blighting or deterioration of the areas in which they are located or surrounding areas, to
pornographic litter, and to detrimental economic and aesthetic impacts upon
neighboring properties and the community as a whole; and
WHEREAS, the need for such special regulations is based upon the recognition
that sexually-oriented businesses have serious objectionable operational
characteristics, particularly when several of them are concentrated under certain
circumstances or located in direct proximity to sensitive uses such as parks, schools,
churches, thereby having a deleterious side effect upon the adjacent areas; and
WHEREAS, one purpose and intent of these special regulations is to prevent the
concentration of sexually-oriented businesses and thereby prevent such adverse
secondary side effects; and
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WHEREAS, the local requirements established by this ordinance do not
unreasonably restrict the establishment or operation of constitutionally-protected
sexually-oriented businesses in the City, and a sufficient reasonable number of
appropriate locations for sexually-oriented businesses are provided by this Ordinance;
and
WHEREAS, zoning, licensing and other police power regulations are legitimate,
reasonable means of accountability to help protect the quality of life in the City and to
help assure that all operators of sexually-oriented businesses comply with reasonable
regulations and are located in places that minimize the adverse secondary effects which
naturally accompany the operation of such business; and
WHEREAS, the Council recognizes the possible harmful effects on children and
minors exposed to the effects of such sexually-oriented businesses and the need and
desire of children and minors to stay away from and avoid such businesses, which
causes children to be fearful and cautious when walking through or visiting a
neighborhood where such businesses are concentrated; and
WHEREAS, the potential for such harmful side effects on children and minors is
a particular concern in Santa Monica because so many schools, playgrounds and other
facilities routinely frequented by children are in or near commercial areas; and
WHEREAS, the Council desires to minimize and control the adverse secondary
side effects associated with the operation of sexually-oriented businesses and thereby
protect the health, safety, and welfare of the citizens of the City; and
WHEREAS, the Council desires to protect the citizens of the City from increased
crime, preserve the quality of life, preserve property values and the character of
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surrounding neighborhoods and businesses, deter the spread of urban blight, eliminate
pornographic litter, and protect against the threat to health from the spread of
communicable and sexually transmitted diseases; and
WHEREAS, while the Council respects and desires to protect the rights
conferred by the United States Constitution upon sexually-oriented businesses, the
Council intends to protects those rights in a manner that ensures the continued and
orderly economic 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 sexually-
oriented businesses;
WHEREAS, it is not the intent of the City Council in enacting this Ordinance or
any provision thereof to condone or legitimize the distribution of obscene material, and
the City and its Council recognize that State law prohibits the distribution of obscene
materials and expect and encourage law enforcement official to enforce State obscenity
statutes against such illegal activities in the City; and
WHEREAS, the City Council does not intend to regulate in any area preempted
by California law, including, but not limited to, regulation of obscene speech; and
WHEREAS, nothing in this Ordinance is intended to authorize, legalize, or permit
the establishment, operation, or maintenance of any business, building, or use which
violates any City ordinance or any statute of the State of California regarding public
nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or
harmful matter, or the exhibition or public display thereof,
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Chapter 9.44 of the Santa Monica Municipal Code IS hereby
amended to read as follows:
CHAPTER 9.44
ADULT ENTERTAlN-MENT ~ SEXUALL Y-
ORIENTED BUSINESSES
Section 9.44.010. Statement of purpose.
It is the purpose and intent of this Chapter to regulate
the operations of sexually-oriented businesses, which have
iudiciallv recoqnized adverse secondary effects, including,
but not limited to. increases in crime in the vicinity of adult
businesses; decreases in property values in the vicinity of
adult businesses: increases in vacancies in residential and
commercial areas in vicinity of adult businesses: interference
with residential property owners' eniovment of their
properties: and the deterioration of neighborhoods. Special
regulation of these businesses is necessary to prevent these
adverse secondary effects while at the same time protecting
the First Amendment riqhts of those individuals who desire
to own, operate or patronize adult businesses. It is therefore
the purpose of this Chapter to establish reasonable and
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uniform regulations to prevent the concentration of sexually-
oriented businesses or their close proximity to incompatible
uses, while permitting the location of sexually-oriented
businesses in certain areas.
There is presently a concentration-ef adult
entertainment uses in the City of Santa Monica, the primary
purpose of 'Nhich is the commercial exploitation of sexually
oricnkd octiviticc :::md dicployc. Thece uses-have theeffeBt
of demeaning human sexuality and enBOOraging an-att#tl€fe
of disdain for 'Nomen, in particular, as commercial
~
+here is considerabl~kmal COABefflwith
many of the effects of adult uses, including their detrimental
ffifluence on children, increased criminal activity associated
'Nith these uses, and the disruptive effects that adult uses
ho vo 0 nod j a oeAt-feSi.f.ieffijal-anG-commercial.. neigh borhooG&
In the long run, the prevalence of such forms of
eRteftainment contributes to a sOGial atmosphere wf:H.Gl:l
fosters increased violence against 'NO~
These effects are significantly increased and
intensified when adult uses are so concentrated as to
transform the character of ::1 given area in to an adult use
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It is deemed necessary to protect the public health,
safety and 'Nelfare to control the location aoo--GeflcentratteA
of such uses. This Chapter restricts the locations of adult
uses to nonresidential area&~ibits their location iR:
close proximity to one another or to facilities primarily
devoted to use by children and families, thereby limiting the
absolute number of adult uses in the City and, in addition,
effectively preventing the concentration of such uses.
Section 9.44.020. Location of Adult entertainment
usesSexually-oriented businesses.
It shall be unlawful to operate or cause to be operated
a sexually-oriented business except as provided in this
Code:
@LAdult entertainment uses Sexually-oriented
businesses shall be considered a permitted use only in tAe
C3 and C4 Designated Commercial Districts. Sexually-
oriented businesses shall be prohibited in all other zoning
districts in the City.
10
fQLWithin the Designated Commercial Districts G3
and C4 Districts, no person shall cause or permit the
establishment of any defined adult use sexually-oriented
business within 500 feet of anychurch, reliqious institution,
public or private school GF college, public park, public library,
public playground, or residential district area zoned for
residential use, or within 1,000 feet of another sexually-
oriented businessadult use [or adult entertainment use].
The reQuired separation distance between sexually-
oriented businesses and any of the uses specified above
shall be measured in a straiqht line from the closest points
on the property lines of each site.
The establishment of an adult use shall include the
opening of such business as a new business, the relocation
of such business, the conversion of an existing business
tooatien-to~n~adult-1I6e,or~theiJrafltif1g- of perm its req u ired
of masseurs and masseuses which 'llould have the effect of
the establishment of an adult use or the intensification of an
existing adult use.
(c) No more than one sexually-oriented business may
be operated or maintained in the same buildinq, structure, or
portion thereof.
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Section 9.44.030. Definitions.
(A) "Adult-oriented merchandise" shall mean any
goods, prQc:lJJ~t?-1 commodities or other ware, including, but
not limited to videos, CD ROMs, DVDs, computer disks or
other r-torage devices, magazines, books, pamphlets, ~ '
16~<.f;} - ~
posters, cards, periodicals, or non-c1othinq novelties which - ~ ( ~J
depict, describe, or simulate specified sexual activities or
specified anatomical areas.
(8) "Desiqnated Commercial Districts" shall mean the
C3, C3C, C4, C5, LMSD, M1, and BSC Districts.
(C) "Distinguished or characterized by an emphasis
upon" shall mean and refer to the dominant or essential
theme of the obiect described by such phrase. For instance,
when the phrase refers to films "which are distinquished or
characterized by an emphasis upon" the depiction or
description of specified sexual activities or specified
anatomical areas, the films so described are those whose
dominant or predominant character and theme are the
depiction of the enumerated sexual activities or anatomical
areas.
12
(0) "Establishment of a sexually-oriented business"
shall mean and include any of the following:
(1) The opening or commencement of any sexually-
orient~d business as a new business.
(2) The conversion of an existinQ business, whether
or not a sexually-oriented business, to any sexually-oriented
business defined herein.
(3) The addition of any of the sexually-oriented
busin~sses defined herein to any other existing sexually-
oriented business.
(4) The relocation of any such sexually-oriented
business.
(E) "Regularly features" shall mean a regular and
substantial course of conduct. Live performances which are
distinQuished or characterized by an emphasis upon the
display of specified anatomical area or specified sexual
activities which occur on four (4) or more occasions within a
thirty (30) day period: six (6) or more occasions within a sixty
(60) day period: or eiQht (8) or more occasions within a one
hundred eighty (180) day period shall be deemed to be a
reQular and substantial course of conduct.
13
(F) "Reliqious Institution" shall mean church, convent,
monastery, synagogue, mosque, or other place of religious
worship,
(G) "Residential Districts" shall mean the R1, R2,
R2R, R2B, R3, R3R, R4, RVC, R-MH, OP1, OP-D, OP2,
OP3, and OP4 Districts or any other district desiqnated by
the City Council as a residential district.
(H) "School" shall mean any child or day care center,
or an institution of learninq for minors, whether public or
private, offering instruction in those courses of study
required by the California Education Code and maintained
pursuant to standards set by the State Board of Education,
This includes a nursery school. kinderqarten, elementary
school. middle or iunior high school. senior hiqh school,
charter school. or any special institution of education or work
training program for physically and mentally disabled adults,
but does not include a vocational or professional institution
of higher education, including a community or iunior colleqe,
or colleqe or university.
^
, \;.
For purposes of this Ch3pter, Adult Uses are:
1.
"Adult Bookstore" Sh311 me3n an ost3blishment
having as a significant portion of its stock in trade book,
14
films, magazines and other periodicals which are
distinguished or characterized by an emphasis on depicting
or describing specified sexual conduct or specified
anatomical areas.
2. "Adult Motion Picture +heater" shall mean an
open or enclosed building customarily used for presenting
motior pictures or other visual-mater-iakHstinguished or
characterizedby-aR-aflphacic on depicting or doccribing
specified sexuaH3eRGuct or specified aRatemfGal-af€a&
3. "Adult Motel" shall mean--a--metel wherein
material is presented '..vhich is distinguished or characterized
9y an emphasis on depicting-ef-Ge&Bfib41g specified sexual
conduct or specified anatomical areas.
1. "Adult Motion Picture f\rcade" shall mean any
place to which the public is permitted or invited wherein .ceffi
or slug operated or electronically, electrically or mechanic::llly
controlled still or motion picture machines, projectGf&;-ef
other image producing devices are maintained to sho'tv'
images to five or fewef--peF5SAs per machine at-aAy-.ene
time, 2nd 'Nhere the images so displayed are distinguished
or characterized by an-effif3'Aasis on depicting Bf-GewHbffi€J
specified sexual conduct or specified anatomical areas.
15
5. "Adult Cabaret" shall mean a nightclub, theater,
or other establishment which features live performances by
topless and/or bottorfHes&-daHGef&,.~ancers, exotic
dancers, strippers, or similar entertainers, where such
performances are distinguished or characterized by an
emphasis on specified sexual conduct or specified
afl-atem.i.GaI.-a reas.
6. "Massage Parlor" shall mean any place where,
for any form of consideration or gratuity, massage, alcohol
rub, administration of.fe.me.Atations, electric or magnetie
treatments, or any other treatment or manipulation of the
human-body occurs 'Nhere such treatment or manipulation--f8
the principal business of the establishment and is not part of
a- recognized therapeutic regime.
7. "Adult Model-Studio" shall meaR-aRy-;:HBBe
"A/here, for any form of consideration or gratuity, figure
models who display specified anatomical areas are provided
to be observed, sketched, dravm, painted, sculptured,
photographeG,ef-S-tmilarly depicted by-pef&efl-s-paying such
consideration or gratuity.
8. "Sexual Encounter Center" shall mean any
business, ageAGY, or person \!lho, for any-ferm-e.f
16
oonsideration or gratuity, provides a fHace where three or
more persons, not all members of the same family, may
69RfJf-egate, assemble or assoGiate-for the purpese-ef
engaging in specified sexual conduct or exposing specified
anatomical-areaS7
9. "Sexual Paraphernalia Store" shall mean any
retail store specializing in the s31e of paraphernalia, devices,
or equipment distinguished or characterized by an emphasis
on depicting or describing specified sexual conduct or used
in connection 'Nith specified sexual conduct.
1 O~. Such other uses or activities as the Planning
Commission may find similar to those listed and
distinguished by an emphasis on depicting, describing or
providing specified sexual conduct or specified 3natomical
areas.
(I) "Sexually-oriented businesses" shall mean any of
the following:
(1) "Adult arcade" shall mean an establishment
where, for any form of consideration, one or more still or
motion picture projectors, or similar machines, for viewing by
five (5) or fewer persons each, are used to show films,
computer qenerated images, motion pictures, video
17
cassettes, slides or other photoQraphic reproductions thirty
(30) percent or more of the number of which are
distinQuished or characterized by an emphasis upon the
depiction, simulation, or acting out of specified sexual
activities or specified anatomical areas.
(2) "Adult cabaret" shall mean a niQhtclub, restaurant,
or similar business establishment which: (1) regularly
features live performances which are distinQuished or
characterized by an emphasis upon the display of specified
anatomical areas or specified sexual activities: (2) which
regularly features persons who appear semi-nude: or (3)
shows films, computer qenerated images, motion pictures,
video cassettes, slides or other photographic reproductions
thirty (30) percent or more of the number of which are
distinQuished or characterized by an emphasis upon the
depiction, simulation, or acting out of specified sexual
activities or specified anatomical areas.
(3) "Adult hotel/motel" shall mean a hotel or motel or
similar business establishment offering public
accommodations for any form of consideration which: (1)
provides patrons with closed-circuit television transmissions,
films, computer qenerated imaqes, motion pictures, video
cassettes, slides or other photographic reproductions thirty
18
(30) percent or more of the number of which are
distinquished or characterized by an emphasis upon the
depiction, simulation, or acting out of specified sexual
activities or specified anatomical areas; and (2) rents,
leases, or lets any room for less than a six (6) hour period, or
rents, leases or lets any single room more than twice in a 24
hour period.
(4) "Adult motion picture theater" shall mean a
business establishment where, for any form of consideration,
films, ~-:omputer generated images, motion pictures, video
cassettes, slides or similar photoqraphic reproductions are
shown, and thirty (30) percent or more of the number of
which are distinguished or characterized bv an emphasis
upon the depiction, simulation. or acting out of specified
sexual activities or specified anatomical areas.
(5) "Adult retail use establishment" shall mean an
establishment that has thirty (30) percent or more of its stock
in adult oriented merchandise.
(6) "Adult theater" shall mean a theater, concert hall,
auditorium, or similar establishment which, for any form of
consideration, reqularly features live performances which are
distinguished or characterized by an emphasis on the
19
display of specified anatomical areas or specified sex.ual
activities.
illS:- _ For the purposes of this Section :Specified
Sexua1 Activities: shall meanafe:
1. Human genitals in a state of sexual stimulation
or arousal;
2_ Sex acts, actual or simulated. including A!!cts of
fH:H:Ra.A-masturbation, sexual intercourse, oral copulation, or
sodomy; or
3. Fondling or other erotic touching of human
genitals, pubic region, buttock, anus, or female breasts.
4. Excretory functions as part of or in connection with
any of the other activities described in subdivisions (1)
throuQh (3) of this subsection (J).
ilSl~ For purposes of this section :Specified
Anatomical Areas: shall rneanare:
1. Less than completely and opaquely covered
(a) Human genitals, pubic region;
(b) Buttock; and
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(c) Female breast below a point immediately above
the top of the areola; or
2. Human male genitals, less than completely and
opaquely covered, or human male genitals in a discernably
turgid state, even if completely and opaquely covered.
3. Any device, costume, or covering that simulates
any of. the body parts included in subdivisions (1) or (2) of
this subsection.
(L) "Stock" shall mean any of the following:
(1) The business devotes thirty percent (30%) or
~~ V'lA~
more of the retail floor area to merc.IIQlldise that is
distinguished or characterized by an emphasis upon
Specified Sexual Activities or Specified Anatomical Areas.
(2) The business devotes thirty percent (30%) or
more of its annual retail inventory (measured by the number
of items or the consumer retail price of the inventory) to
merchandise distinguished or characterized by an emphasis
upon Specified Sexual Activities or Specified Anatomical
Areas.
(3) The retail value of merchandise that is
distinguished or characterized by an emphasis on Specified
21
/6 :c.{)
Sexual Activities or Specified Anatomical Areas is thirty
percent (30%) or more of the total retail value of inventory
offered in each of the followinq categories: (a) books, (b)
maqazines, (c) video tapes or any material in digital format
(includinq, but not limited to compact disc (CD or diqital
video disc (DVD), for sale or rental, (d) non-clothing
novelties and devices, and (e) on-premises viewinQ of
imaqes, films and/or videos. ~ -' ~
t
,...in any CB!eQOry set forth in Paraarapa(3) abo'jQ is thirty
percent (30%) or more of the total gross revenue for the
cateQory.
There is a rebuttable presumption that a business
constitutes a sexually-oriented business where the business
(1) offers or advertises merchandise that is distinQuished or
characterized bv an emphasis upon Specified Sexual
Activities or Specified Anatomical Areas and (2) fails to
make revenue and inventory related business records
available to the City upon reasonable advance notice.
22
Section 9.44.040. Exemption.
The provisions of this Chapter shall net-awly-te
educational institutions aC6feGited by appropriate state
agencies:-
Section 9.44.0e~0. Amortization of
nonconforming uses.
The following amortization provisions shall apply to
nonconforming uses:
illL\^lithin one year after the effective date of
Sections 9.44.010, 9.44.020 and 9.-1-1.030, all non
conforming adult entertainment uses as defined in Section
9.44.03.60 shall be brought into full compliance 'Nith this
Chapter Any use of real property existing on September 27,
2005, which does not conform to the provisions of this
Ordinance No. lCCS}, but which was constructed,
operated and maintained in compliance with all previous
regulations governing sexually-oriented uses, shall be
regarded as a legal nonconforming use which may be
continued until November 24, 2006. except that such
activities may continue for up to an additional tvo'O years
upon the granting of a Conditional Use Permit, pursuant to
the Conditional Use Procedure set forth at prior code Section
23
9148 of the Municipal Code, and upon a determination that
the adult use is obligated by written lease of the premises
exceeding one year from the effective date of SeBtfoo-s
9.11.010,9.11.020, and 9.44.030 or that the adult use
involves investment of money in leasehold or improvements
such that the longer period is necessary to prevent undue
financial hardship.
(b) The owner or operator of a nonconforminq use
may apply to the City Council for an extension of time within
which to terminate the nonconforminq use. An extension
shall be for a reasonable period of time commensurate with
the investment involved and shall be approved if the City
Council makes all of the following findings or such other
findinQs as are required by law:
(1) The applicant has made a substantial investment
(including but not limited to lease obligations) in the property
or structure on or in which the nonconforminQ use is
conducted; such property or structure cannot be readily
converted to another use; and such investment was made
prior to September 27,2005.
(2) The applicant will be unable to recoup said
investment as of November 24.2006.
24
(3) The applicant has made Qood faith efforts to
recoup the investment and to relocate the use to a location
to meet the requirements of this Chapter.
{QLFor purposes of this section, in the case of two
adult uses located within 1,000 feet of one another, that use
which was first lawfully established and is otherwise in
conformity with this Chapter, shall be entitled to continue in
its present location.
Section 9.44.050. ProcessinQ and Approval of
Business License Applications.
The City shall act upon any application for a business
license to operate a sexuallv-oriented business within thirty
(30) days. The failure to act on the application within thirty
(30) days shall be deemed an approval unless the applicant
voluntarily aQrees to extend the time for the City to act upon
the application. The City shall approve the business license
application unless it is deter:.mined that:
(1) The applicant, its employee, agent, partner.
director. officer, stockholder or manaQer has knowinQly
made any false. misleading or fraudulent statement of
material fact in the application or in any report or record
required to be filed with the Finance Department.
25
(2) The application does not contain the information
required by this Chapter or Chapter 6 of this Code.
(3) All required fees have not been paid.
(4) The operation of the sexually-oriented business is
or would be in violations of one or more provisions of this
Chapter.
(5) The premises where the sexually-oriented
business is or would be located do not complv with all
applicable laws, including, but not limited to the City's
buildinQ, health. zoninQ and fire ordinances.
(6) A business license for the operation of the
sexually-oriented business has been issued to the applicant,
a partner of the applicant or a stockholder of the applicant
which stockholder owns more than 10 percent of the
applicant's corporate stock, which business license has been
suspended and the period of suspension has not yet ended.
Notice of the business license denial shall be in writinQ and
shall state the qrounds for denial. Notice shall be personallv
served to the business license applicant or mailed to the
address listed on the application form.
26
Section 9.44.060. Business License Validity and
Conditions.
The City may condition issuance of a business license
to ensure compliance with the provisions of this Chapter and
other standards and regulations of the City's Municipal Code
applicable to the operation of a sexually-oriented business.
Each business license shall be valid only:
(a) For the business owner(s) specified in the
business license application.
(b) For the business name for the sexually-oriented
business listed in the business license application.
(c) For the specific type of sexually-oriented business
described in the business license application.
(d) For the specific location described in the business
license application.
Section 9.44.070. Sale or Transfer of Business.
(a) No business license issued in compliance with
this Chapter shall be assiQned or transferred without the
prior written approval of the City. The applicant shall apply
27
for a transfer on a form provided by the City and shall pay
the application processing fee established by Council
resolution for a new sexually-oriented business.
(b) An application for approval of a transfer of a
business license shall be required prior to any change in an
interest in a partnership or ownership of 10 percent or more
of the stock of a corporation to any person not listed on the
oriQinal approved application.
(c) An application for transfer of a business license
may b~ denied for any of the grounds specified for denial of
an original business license application.
Section 9.44.080. Displavs.
A sexually-oriented business authorized by this
Section shall not display any signs, advertising, posters,
photographs. oraohic representations or adult-oriented
merchandise that can be viewed by persons off the site and
which depict specified sexual activities or specified
anatomical areas.
Section 9.44.090. Judicial Review.
Anvone seekino iudicial review of any administrative
action under this Chapter may seek a writ of mandate for
28
prompt iudicial review of such administrative action pursuant
to California Code of Civil Procedure Section 1094.8.
SECTION 2. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary
to effect the provisions of this Ordinance.
SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council hereby declares that it would
have passed this Ordinance and each and every section, subsection, sentence, clause,
or phrase not declared invalid or unconstitutional without regard to whether any portion
of the ordinance would be subsequently declared invalid or unconstitutional.
SECTION 4. 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 15 days after its adoption. This Ordinance shall become
effective 30 days from its adoption.
APPROVED AS TO FORM:
29
1V
SEP 2 7 2005
F :\atty\mun i\strpts\mjm\adultretail.doc
City Council Meeting 9-27-05
Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Ordinance Amending Chapter 9.44 of the Santa Monica Municipal Code
Relating to Sexually-Oriented Businesses
Introduction
The attached proposed ordinance would amend and update the Municipal Code
provisions which regulate adult, or sexually-oriented, businesses. The present
ordinance was adopted in 1981, and an update is necessary to clarify the ordinance's
scope and address changes in the law. The proposed ordinance is presented to the
City Council for first reading.
Background
In the last year, a number of questions have arisen about the efficacy of Municipal Code
Chapter 9.44 which regulates the location of various types of adult businesses.
Because such businesses may engage in expressive activities protected by the First
Amendment, municipal regulatory powers are or may be subject to First Amendment
constraints. Therefore, any exercise of local authority should be based upon a full
record. Accordingly, staff has obtained and reviewed studies undertaken in other cities
which show that sexually-oriented businesses impact surrounding neighborh@ods.
Impacts demonstrated by the studies include increased crime and diminished property
values.
The studies also show that these adverse impacts increase if sexually-oriented
'1D
SEP 2 7 2005
1
businesses become concentrated in small areas. Copies of the studies will be made
available at the Council hearing on the proposed ordinance. In addition to reviewing the
studies, staff has also reviewed the extensive case law applicable to the local regulation
of adult businesses. That case law will also be before Council at the hearing.
For many years, Santa Monica has regulated the location of "adult entertainment uses,"
a term which covers a variety of sexually-oriented businesses. Existing Santa Monica
Municipal Code Chapter 9.44 defines the term "adult entertainment uses" to include,
among other things, adult bookstores, motion picture theaters, adult motels, sexual
paraphernalia stores and massage parlors. Chapter 9.44 limits such businesses to the
C3 and C4 Districts. Within those zones, such uses are prohibited within 500 feet of
any church, school, library, playground or area zoned for residential use. There is also
a prohibition against adult entertainment uses being located within 1000 feet of one
another.
Aside from illicit "massage" parlors, few adult businesses are located within Santa
Monica. Staff is aware of three businesses which sell both sexual paraphernalia and
adult videos and may fall within the current definition of "adult entertainment use." One
of these businesses has been located in a small retail space on Wilshire Boulevard for
many years and another is located in a small space on Main Street. In both stores, most
of the floor space is devoted to lingerie and other clothing, and the adult video sections
are segregated from other merchandise. Staff is unaware of any complaints relating to
these businesses, despite the fact that both are located in zones where adult
businesses are not a permitted use. A third, larger business opened on Lincoln
Boulevard this year, and City staff received many complaints about the business
2
opening there. It is located in a zone designated for adult businesses but within
relatively close proximity to residences.
In response to residents' complaints about the business on Lincoln Boulevard, staff
reviewed Chapter 9.44 to determine whether that business and the two others constitute
"adult entertainment uses" and are therefore subject to the restrictions imposed by the
current ordinance. Staff concluded that the determination was difficult, if not impossible,
to make because definitions in the current law are ambiguous. For instance, whether or
not a bookstore qualifies as an "Adult Bookstore" depends upon whether a "significant
portion" of the books or films offered for sale depict specified sexual conduct. Likewise,
whether a store qualifies as a "Sexual Paraphernalia Store" depends upon whether the
store "specializes" in merchandise used in connection with specified conduct. The
terms "significant" and "specialize" are not defined. Because these ambiguities
rendered the ordinance difficult to administer, staff concluded that revisions should be
proposed.
Moreover, there are additional legal reasons to amend and update the ordinance.
Developments in case law may require revision of the location restrictions and the
addition of procedural safeguards to protect the constitutional rights of those business
owners whose activities are shielded by the First Amendment. A memorandum
summarizing legal issues is attached.
Discussion
The proposed ordinance is modeled after ordinances which have withstood federal
constitutional challenges in other jurisdictions.
3
The ordinance would substantially revise certain definitions for clarity's sake. It would
clarify when an establishment constitutes a sexually-oriented business. For instance,
an adult retail use establishment (previously denominated as a "sexual paraphernalia
store") would be an establishment that has thirty percent (30%) or more of its stock in
adult-oriented merchandise. Adult-oriented merchandise and stock is also specifically
defined. The proposed ordinance would also more precisely define when an
establishment constitutes an adult arcade, adult cabaret, adult hotel/motel, adult motion
picture theater, and adult theater by establishing precise numerical or percentage
thresholds for when an establishment which features/distributes/sells adult materials or
performances constitutes a sexually-oriented business.
Other definitions would be eliminated by the proposed ordinance. The definition of
"Adult Model Studio" would be eliminated as unnecessary to fulfill the ordinance's
purposes because the only such studios in or near the City operate in conjunction with
legitimate art classes. Likewise, the term "Sexual Encounter Center" would be deleted
as unnecessary because no such centers operate in the City and, even if they did, other
laws would likely apply.
The proposed ordinance would continue to allow sexually-oriented businesses in the C3
and C4 Zoning Districts. The ordinance would also clarify that these businesses can be
located in the C3C and SSC Districts. These districts were established after the current
ordinance was adopted and, with minor exception, had been part of the C3 District.
Additionally, the proposed ordinance would allow such businesses in the LMSD, M1 and
C5 Zones. This change is proposed in order to ensure that the City continues to fulfill
requirements imposed by case law. Generally speaking, the courts have prohibited
4
cities from zoning out adult businesses in order to protect the First Amendment rights of
business operators. Thus, location restrictions on such businesses must leave
adequate sites available to, meet demand. The location restrictions in the proposed
ordinance would leave 1-1.5% of land within the City available to adult businesses.
Current spacing requirements would be maintained. Therefore, it would continue to be
illegal to locate a sexually-oriented business within 500 feet of a "residential district." All
existing residential districts would be encompassed by this provision. The ordinance
clarifies that the required separation from religious institutions, schools (except
institutions of higher education), playgrounds and other facilities is measured in a
straight line from the closest points on the property lines of each site.
The amortization provision of Chapter 9.44 would also be revised to establish a one-
year amortization period for legal non-confirming sexually-oriented businesses subject
to a two year extension if the sexually-oriented business is obligated by an existing
lease. Whether existing businesses would be subject to the proposed ordinance and
the amortization provisions would depend upon whether they fall within the ordinance's
definitions.
Several new provisions would also be added. One would prohibit signs depicting
specified sexual activities or anatomical areas from being visible off the site. This
provision would limit adverse impacts on neighborhoods. Other new provisions would
establish a processing time limit of 30 days on business license applications, the right to
prompt judicial review, authorize the City to impose conditions on the business license,
5
and restrict the sale or transfer of the business. These provisions fulfill requirements
imposed by case law.
Two unnecessary sections of the current ordinance would be eliminated. One purports
to establish an exception for schools, which is unnecessary with the elimination of "Adult
Model Studios" from the list of regulated businesses. The other regulates massage
businesses, which are separately regulated by a different Chapter of the Municipal
Code. Staff is currently working on amendments to that Chapter.
FinanciallBudqet Impact
Adoption of the proposed ordinance would have no financial impact.
Recommendation
Assuming that the Council wishes to continue regulating the location of sexually-
oriented businesses, it is respectfully recommended that the accompanying ordinance
be introduced for first reading.
PREPARED BY: Marsha Jones Moutrie, City Attorney
Barry Rosenbaum, Senior Land Use Attorney
ATTACHMENTS: Memorandum
Proposed Ordinance
6
.
SANTA MONICA CITY ATTORNEY'S OFFICE
MEMORANDUM
City "i
Snu'. Monl....'"
DATE:
April 21, 2005
FROM:
Susan McCarthy, City Marlager
Marsha Jones Moutrie, City Attorney
Barry A. Rosenbaum, Senior Land Use Attorney
Adult Entertainment Uses
TO:
RE:
You requested that this office provide you advice regarding the interpretation of certain
definitional provisions of the City's Adult Entertainment Uses Ordinance, Chapter 9.44 of the
Santa Monica Municipal Code ("Ordinance"). Specifically, you requested an interpretation of
the definitions of adult bookstore and sexual paraphernalia store and our opinion about the
overall enforceability of the Ordinance.
Background
The City adopted the Ordinance in 1981. It permits adult entertainment uses in the C3
and C4 Districts only. Section 9.44.020. Within these two districts, adult entertainment uses are
prohibited within 500 feet of any church, public or private school or college, park, library,
playground, or area zoned for residential use, or within 1,000 feet of another adult use. Id. (A
circle with a radius of 1,000 feet encompasses approximately 72 acres). The Ordinance was
adopted, in part, due to concern about the secondary effects of adult entertainment uses. Section
9.44.010. These included increased criminal activity associated with these uses, the disruptive
effect that such uses had on adjacent residential and commercial neighborhoods, and their
detrimental influence on children. Id.
The Ordinance specifies that the term adult uses includes adult bookstores, adult motion
picture theaters, adult motels, adult motion picture arcades, adult cabarets, massage parlors, adult
model studios, sexual encounter centers, and sexual paraphernalia stores. Each of these adult
uses is defined in the Ordinance. Section 9.44.030.
Section 9.44.030A.l defines an adult bookstore as: "an establishment having as a
significant portion of its stock in trade books, films, magazines and other periodicals which are
distinguished or characterized by an emphasis on depicting or describing specified sexual
conduct or specified anatomical areas." Section 9.44.030A.9 defines a sexual paraphernalia
store as: "any retail store specializing in the sale of paraphernalia, devices, or equipment
1 Since the Ordinance has not been amended, it does not expressly encompass many of
the new entertainment mediums. See Executive Arts v. City of Grand Rapids, 391 F.3d 783, 787
(6th Cir. 2004) (ordinance which had not been updated since the 1970's was described by the trial
court as a "dinosaur")
F:\M:unicipalLllw\Shalc\!vffiMOS\BAR\Adult Entertainment Ordinance,doc
April 21, 2005
Page 2
distinguished or characterized by an emphasis on depicting or describing specified sexual
conduct or used in connection with specified sexual conduct." Interestingly, the Ordinance
defines "specified sexual activities" but not "specified sexual conduct." Presumably, these two
terms are interchangeable.
Analysis of Ordinance
Courts have traditionally held that zoning ordinances designed to combat the undesirable
secondary effects of adult entertainment businesses are analyzed as "time, place, and manner"
restrictions on speech, thereby subjecting these ordinances to an intermediate level of review.
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1986), citing Young v. American
Mini Theatres, Inc., 427 U.S. 50, 70 (1976); City of National City v. Wiener, 3 Cal. 4th 832, 840-
41 (1992) This level of review was justified because these regulations were considered content-
neutral, not being aimed at the content of the speech, but at the secondary effects of these
establishments. Id. See Tollis Inc. v. San Bernardino County, 827 F.2d 1329, 1332 (9th Cir.
1987) (if the predominant purpose of the ordinance is the amelioration of secondary effects, it is
content-neutral and should be analyzed as a time, place and manner regulation). 2
There can be little dispute that the City's Ordinance regulates speech that is sexual or
pornographic in nature. Additionally, the record reflects that the Ordinance was adopted, in
part, to address the secondary impacts of the regulated activities. In addition to the concern
about secondary impacts expressed in the Ordinance's purpose statement, discussed above, the
1980 staff report introducing the Ordinance describes concerns about serious crime, particularly
to women, and the welfare of children. Given these factors, a court would likely conclude that
concern about secondary impacts was the primary motivation behind its adoption. See Gammoh
v. City of La Habra, 395 F.3d at 1124 (in determining purpose of challenged ordinance, court
looked to the materials that the city council considered in determining whether to enact the
2 These regulations may no longer be viewed by the courts as content-neutral. As
detailed in Gammoh v. City of La Habra, 395 F.3d 1114, 1123 (9th Cir. 2005), citing City of Los
Angeles v. Alameda Books, Inc., 535 U.S. 425,448 (Kennedy, J., concurring): "Recently,...
the Supreme Court has recognized that virtually all regulation of adult businesses is content-
based." However, treating adult establishment regulations as content-based may not alter the
basic legal analysis. "Content-based [adult business] regulations may be analyzed under
intermediate scrutiny if two conditions are met: 1) the ordinance regulates speech that is sexual
or pornographic in nature; and 2) the primary motivation behind the regulation is to prevent
secondary effects." Gammoh v. City of La Habra, 395 F.3d at 1123-24. See Ctr. For Fair Pub.
Policy, 336 F.3d at 1165 (even though adult business regulation is content-based, it is still
subject to intermediate scrutiny when it is designed to combat the secondary effects of such
establishments ).
F:\;.~unicipaILaw\Share\MEMOS\BAR.\Adult Entertai nment Ordinance, doc
April 21, 2005
Page 3
ordinance and at the ordinance itsel1i Consequently, the Ordinance would likely be subject to
intermediate scrutiny.
A city may impose reasonable restrictions on the time, place or manner of protected
speech, and thereby survive intermediate scrutiny provided the restrictions are: (1) designed to
serve a substantial government interest; (2) narrowly tailored to serve that interest; and (3) leave
ample alternative channels for communication of the information. Gammoh v. City of La Habra,
395 F.3d 1114, 1125-26 (9th Cir. 2005); World Wide Video, Wa v. City of S~okane, 368 F.3d
1186, 1192 (9th Cir. 2004); Colacurcio v. City of Kent, 163 F.3d 545, 551 (9t Cir. 1998), cert.
denied, 529 U.S. 1053 (2000).
Just as a court would likely conclude that the City was primarily motivated by a concern
with secondary impacts, a court would also likely conclude that the Ordinance serves a
significant governmental interest. Courts recognize that a city's interest in attempting to
preserve the quality of urban life is one that must be accorded high respect. A city has a
substantial interest in preventing the deleterious secondary effects associated with adult
businesses. Tollis, Inc., 827 F.2d at 1332. See Ctr. For Fair Pub. Policy, 336 F.3d at 1166 ("It is
beyond peradventure at this point in the development of the doctrine that a state's interest in
curbing the secondary effects associated with adult entertainment establishments is substantial.").
In making this showing, a municipality may rely on any evidence that is reasonably believed to
be relevant for demonstrating a connection between speech and a substantial, independent
government interest. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438 (2002).
The First Amendment does not require a city before enacting an adult entertainment ordinance to
conduct new studies or produce evidence independent of that created by other cities. Young v.
American Mini Theatres, Inc., 427 U.S. 50, 71 (1976). A city can rely on the experiences of
other cities, including studies, so long as this evidence is reasonably believed to be relevant to
the problem that the city addresses. City of Renton, 475 U.S. at 51-52. A city can also rely on
the evidentiary foundation set forth in prior judicial decisions to support a city's determination.
City of Erie v. Pap's A.M., 529 U.S. 277, 297 (2000). Citizen testimony can meet this requisite
showing. World Wide Video, Wa v. City of Spokane, 368 F.3d at 1195; Center for Fair Pub.
Policy v. Maricopa County, 336 F.3d 1153, 1168 (9th Cir. 2003) (testimonial evidence constitutes
real evidence).
Whether or not the Ordinance would be determined to be "narrowly tailored" and to leave
open substantial alternatives are much closer questions.
Numerous cases involve challenges to adult entertainment ordinances which include the
terms "significant or substantial" to describe when the amount of a business' stock in adult
books, films, magazines, etc. will qualify that business as an adult business. Often these
challenges arise in the context of claims that the ordinance is not narrowly tailored or is
3 The City's Ordinance's purpose statement also expressed concern about the commercial
exploitation of sexually oriented activities and the effect of demeaning human sexuality. These
purposes would appear more content-driven.
F:\M:unidpAILaw\Sharc\J\..f'I:::MOS\BAR\Adult Entcrtaimucllt Onlimuu;;c.uoc;
April 21, 2005
Page 4
overbroad. A number of these decisions were detailed recently in
of Littleton, 311 F.3d 1220, 1229 (loth Cir. 2002).
"Language similar to the 'significant or substantial' language used in
this ordinance has been interpreted previously by state courts in a
sufficiently narrow manner to avoid constitutional problems. A
common method of narrowing construction has been to develop a
percentage that will act as a guide to what constituted 'significant or
substantial.' See, M., Dandy Co. v. Civil City of South Bend, 401
N.E.2d 1380, 1385-86 (Ind.Ct.App. 1980) (holding that a conviction
under a similar ordinance was sustainable where there was evidence
that 'up to 80% of the inventory was adult in nature'); St Louis
County v. B.A.P.. Inc., 25 S.W.3d 629, 630-31 (Mo.Ct.App. 2000)
(noting that a local adult-business ordinance established a rebuttable
presumption that a business carries' substantial portion' of adult-
oriented items where more than twenty-five percent of the retail value
of the inventory consists of such items); City of N ew York v. Les
Hommes, 94 NY.2d 267, 702 N.Y.S.2d 576, 724 N.E.2d 368,370
(1999) (noting that the City of New York had clarified that a
'substantial portion' for purposes of its adult-business ordinance
meant at least forty percent).
Z.J. Gifts was cited approvingly by the Ninth Circuit in World Wide Video, Wa. v. City
of Spokane, 368 F.3d at 1198-99. See also Encore Videos. Inc. v. City of San Antonio, 352 F.3d
938 (5th Cir. 2003) (San Antonio's ordinance which established a 20% threshold was not
narrowly tailored. City had not sufficiently demonstrated that businesses which provide only
take-home videos and books have the same harmful secondary effects as adult movie theaters
and peep shows.); Tollis. Inc. v. San Bernardino County, 827 f.2d 1329, 1333 (county did not
present evidence that a single showing of an adult movie would have any harmful secondary
effect); Doctor John's, Inc. v. City of Sioux City, Iowa, 305 F.Supp.2d 1022, 1038 (N.D. Iowa
2004) (court enjoined ordinance which established a 5% threshold since there was no showing
that stores with such limited stock-in-trade would have secondary effects); Wil-Kar. Inc. v.
Village of Germantown, 153 F.Supp.2d 982 991(E.D. Wis 2001) (city could not establish a
narrowing construction based on past practice since city's only practice was non-enforcement).
See also Executive Arts v. City of Grand Rapids, 391 F.3d 783, 796 (6th Cir. 2004) (city's broad
ordinance would encompass establishments such as Walden's and Borders; city had not
produced any evidence of secondary effects from these type of establishments); Government
Code Section 65850.4 ("for purposes of this section, a sexually oriented business is one whose
primary purpose is the sale or display of matter, that because of its sexually explicit nature, may,
pursuant to state law or local regulatory authority, be offered only to persons over the age of 18
years). But see People v. Superior Court (Lucero), 49 Cal. 3d 14 (while determining that a single
showing of an adult film could not make the theater an adult theater, the court held that a
F;\MunicipaILaw\Share\MCMUS\BAR\Adult Entertainment Ordinance,doc
April 21, 2005
Page 5
"regular and substantial course of conduct" standard was appropriate)4; State v. Hanna,
So.2d (2005 WL 672183) (Fla.App. 5 Dist.) (city code which defined "substantial portion"
as more than an insignificant or incidental portion but not necessarily a majority or predominant
amount was not unconstitutionally vague); 93 P.3d 633,
640 (Colo.App. 2004) (ordinance does not require any specific percentage, court looks to
dictionary definition of significance and common use in other statutory provisions).
Unlike "signiticant or substantial," there do not appear to be any cases addressing the
term "specializing" in the adult entertainment context. It is commonly defined as "to apply or
direct to a specific end or use" or "to concentrate one's efforts in a special activity or field." If
interpreted in this manner, this term sets a relatively high standard for an establishment to be
considered a sexual paraphernalia store. However, unlike the regulation of books, videos, and
films, the regulation of the sale of sexual paraphernalia may not raise First Amendment issues.
See Williams v. Attorney General of Alabama, 378 F.3d 1232 (lIth Cir. 2004).
As discussed, the final prong of the intermediate scrutiny standard requires that an adult
entertainment ordinance allow reasonable alternative avenues of communication. Young v. City
ofSimi Valley, 216 v.3d 807,816 (9th Cir. 2000); Walnut Properties. Inc. v. City of Whittier,
861 F.2d 1102, 1108-09 (9th Cir. 1988). This issue has been addressed extensively by the
courts. See City of Renton v. Playtime Theatres. Inc., 475 U.S. 41, 54 (ordinance allowed
reasonable alternatives since more than five percent of city's land area remained open for use for
adult theaters); Executive Arts v. City of Grand Rapids, 391 F.3d at 797 (ordinance invalidated
since business foreclosed from opening its store in all but about a half dozen possible sites in a
City with over 2,500 j;arcels of commercially usable real estate); Young v. City ofSimi Valley,
216 F.3d 807, 822 (9 Cir. 2000) (in assessing reasonable alternatives, must examine a number
of factors, including whether the number of locations available equals or exceeds the number of
existing adult businesses, the percentage of acreage theoretically available to adult businesses,
the number of available sites in relation to population, community needs); Isbell v. City of San
Diego, 258 F.3d 1108 (9th Cir. 2001) (to constitute available sites, they must be in actual
business real estate market and be consistent with the separation requirement); Walnut Properties
v. City of Whittier, 861 F.2d 1102 (9th Cir. 1988) (in assessing adequate sites, must take into
account separation requirement; ordinance was invalid since it forced only existing adult theater
to close with no definite prospect of ability to relocate); City of Stanton v. Cox, 207 Cal. App. 3d
1557,1566-67,255 Cal. Rptr. 682, 687-88 (1989) (ordinance invalidated since only six sites
were identified); Franklin Jefferson. Ltd. V. City of Columbus, 244 v. Supp. 2d 835,840 (S.D.
Ohio 2003)(ordinance which only allowed eleven sites for adult businesses (.047% of city's
land) was inadequate). The City has not analyzed the number or percentage of sites that remain
available under the Ordinance.
4 The Court also indicated that Long Beach could further define the standard by
specifying a percentage of the films shown or revenue received. Id. at 28 n.9.
1':\MunicipaILaw\Share\MEMOS\BARIAdult Entertainment Ordinance. doc
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Page 6
Other Potential Issues With Applying Ordinance
1. Whether the Ordinance is Infirm Because There Is No Established Time Period for
Decision on Business License
A prior restraint exists when the enjoyment of protected expression is contingent upon
the approval of government officials. Requiring a business to obtain a license before engaging in
business is a prior restraint. Dream Palace v. County of Maricopa 384 F.3d 990, IDOl (9th Cir.
2004). A licensing system that regulates adult entertainment businesses must contain certain
procedural safeguards. One of these safeguards is the requirement that the licensor must make
the decision on the business license within a specified and reasonable period during which the
status quo is maintained. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 228 (1990); City of
Littleton, Colorado v. 2.J. Gifts D-4, 1..1..C., 541 U.S. 774 (2004). See J.1.. Thomas v. County of
Los Angeles, 232 CaI. App. 3d 916, 283 CaI. Rptr. 815 (1991) (since County's law requiring
issuance of a conditional use permit for adult business contained no specific time limit for
County to act on permit, law violated the First Amendment). The City's Code provisions
regulating business licenses do not contain a specified period for making a decision on license
applications.
2. Lack of Enforcement
The City has not enforced the Ordinance even though there may well be existing
businesses which have been out of compliance with its provisions.
Conclusion
The City adopted the Ordinance in 1981. It has not been amended. Its provisions have
not been subject to any narrowing construction. It has not been actively enforced; businesses
which may be considered adult uses, particularly massage parlors, are operating in the City
outside the C3 and C4 Districts. Given these circumstances, prior to enforcing the Ordinance, it
would be legally advisable for the City to: (1) clarify "significant portion" and "specializing" as
used in the terms "adult bookstore" and "sexual paraphernalia store" respectively; (2) detennine
whether the Ordinance authorizes sufficient sites for adult uses; (3) establish a specified and
reasonable period of time for processing adult use business licenses; and (4) review the evidence
that the City relied on in establishing the governmental purpose and interest in this legislation. If
the City forgoes these steps, simply classifies a business as an adult use and pursues
enforcement, litigation would be expected. The potential for a successful challenge is fairly
high. This litigation would subject this Ordinance, and perhaps other City ordinances, to
invalidation and expose the City to fee liability.
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