HomeMy WebLinkAboutAGENDA REPORT 1993 0106 CC REG ITEM 09A17-7,//
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ITEM
r s 2 MOORPARK
799 Moorpark Avenue Moorpark, California 93021 (805) 529 -6864 "
AGENDA REPORT
ACTION: t9i�i.�►e n
TO: The Honorable City Council Aoly _
FROM: Jaime Aguilera, Director of Community Developmtlifi
- ---- --
Paul Porter, Senior Planner Gb"
DATE: December 17, 1992 (CC meeting of January 6, 1993) r
SUBJECT: ADULT ENTERTAINMENT FACILITIES /BUSINESSES ORDINANCE
Background
This matter was first heard by the Planning Commission at a duly
noticed public hearing on February 3, 1992. The hearing was
continued to February 18, 1992 at the request of the Planning
Commission to allow them the opportunity to review similar
ordinances from surrounding jurisdictions, prior to their making a
recommendation to the City Council. Staff had contacted the cities
of Camarillo, Oxnard, Thousand Oaks, Simi Valley and Ventura for
information relating to adult businesses. The cities of Oxnard and
Camarillo are the only two cities that have an Adult Business
Ordinance at this time; however, the City of Simi Valley is in the
process of preparing an Ordinance. The Ordinances from both Oxnard
and Camarillo have been previously provided to the Council. On
March 2, 1992, the Planning Commission adopted Resolution No. PC
92 -258 recommending to the City Council that the regulation of
adult businesses is required for 1) the preservation and integrity
of existing commercial and residential areas within close proximity
of such uses, 2) is in the public interest to regulate such uses
and would promote the general health, safety and general welfare of
the community. The Planning Commission recommends that the City
Council approve the draft Ordinance as found attached to Planning
Commission Resolution No. 92 -258.
This matter which was scheduled to be heard by the City Coucil at
a public hearing on December 16, 1992 was continued to January 6,
1993.
Discussion
The Planning Commission staff report dated December 20, 1991 gives
an overview of the types of approaches to the writing of Adult
Ordinances and reasons for regulating adult businesses. The draft
Ordinance as written requires a City Council approved Conditional
Use Permit on the basis that a discretionary permit would allow
staff, the Planning Commission and the City Council to review each
request for an Adult Business and show: a) that the use will not
have an adverse impact on the area, and b) that there is a
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PAUL W. LAWRASON JR. BERNARDO M. PEREZ SCOTT MONTGOMERY ROY E. TALLEY JR. JOHN E. WOZNIAK
Mayor Mayor Pro Tem Councilmember Councilmember Counoilmember
demonstrated need for the use in that particular location. This
analysis is consistent with the permit standards that are outlined
in Section 8111 -2.1.2 of the City's Zoning Ordinance.
The Planning Commission staff report dated February 11, 1992,
addresses additional concerns regarding Adult Business Ordinances.
As indicated in the Planning Commission staff report dated February
11, 1992 and as advised by our City Attorney ( see City Attorney
opinion which has been sent to you under separate cover) , it is
conceivable that a Conditional Use Permit may be denied by the
City, which could potentially raise constitutional questions, as
the First Amendment does not give government the right to restrict
expression because of its message, ideas, subject matter, or
content. Requiring a Conditional Use Permit, in theory may have
the potential to require an applicant to demonstrate why he or she
should be able to exercise his or her First Amendment rights.
Since conditions may be imposed on Conditional Use Permits,
potential adult business owners would not know the City's criteria
required to operate an adult business prior to final approval of
the permit.
Another method for allowing adult businesses and at the same time
protecting First Amendment rights would be to allow approval of
adult businesses as long as the proposed use is: 1) within the
proper zoning classification, 2) is the correct distance from
other restricted uses such as residences, churches and schools, 3)
has paid the appropriate fees such as Business Registration, 4)
meets Building and Safety requirements, etc. As such, if the
proposed adult business meets these criteria, City staff should
have no other discretion as to whether or not an adult business may
be located in the City and would be required to issue a permit to
occupy.
The Planning Commission discussed the two approaches to the
establishment of an Adult /Businesses Ordinance at length. It was
the Commission's determination that adult businesses, when located
in a facility frequented by minors, or when concentrated, can have
deleterious effect on adjacent residential and commercial areas and
cause the exposure of minors to adult material which, because of
their immaturity, may adversely affect them. Also, many persons
are offended by the display of certain material and as such,
special regulations of these uses are necessary within the City to
insure that these adverse effects will not contribute to the
blighting or the downgrading of the surrounding neighborhoods and
have an adverse effect on minors. Therefore, the Planning
Commission recommends that Adult Businesss be allowed in the
Commercial Planned Development Zone with approval of a Conditional
Use Permit and other required criteria such as minimum required
distances from sensitive uses such a residences, churches,
educational facilities, parks and facilities having an on -site sale
alcoholic beverages are necessary to protect the health, safety,
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and general welfare of the community.
On November 17, 1992, the Community Development Committee ( Lawrason
and Perez) met to review the proposed Ordinance and recommended
that City Council approve the draft ordinance as written, with the
exception that Section 1 -102 B 3 be changed as follows:
.............. ...............................
3. Is not within ` >)l i feet of any lot
upon which there is located another adult business.
The proposed change is in response to attorney Kane's comment that
the Ordinance as proposed is too restrictive and may be found to be
invalid. By reducing this requirement from 1,000 feet to 500 feet,
the committee hopes to address this issue.
Recommendations:
1. Open and close the public hearing.
2. Determine that this ordinance is exempt from CEQA on the basis
of Section No. 15061(b)(3) of the CEQA State Guidelines in the
proposed ordinance does not have the potential for causing a
significant effect on the environment.
3. Determine that the regulation of "adult businesses" through a
Conditional Use Permit process is required for the
preservation of the integrity of existing commercial and
residential areas within close proximity thereto, is in the
public interest, would promote the general welfare of the
community, and that the attached draft ordinance regulating
adult businesses be adopted.
4. Introduce the Ordinance for first reading.
Attachments:
1.* Planning Commission Resolution No. 92 -258 with attached
Ordinance
2.* Planning Commission staff report dated February 11, 1992
3.* Planning Commission staff report dated December 20, 1992
4.* Adult Business Ordinances from the City of Oxnard and
Camarillo
5. Draft Ordinance
* Note: These documents are not located in this packet.
They were previously included in the 12/16/902
packet.
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ORDINANCE
A ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA AMENDING ORDINANCE NO.
137 BY ADDING ADULT ENTERTAINMENT FACILITIES /
BUSINESS REGULATIONS
WHEREAS, at a duly noticed public hearing held on January 6,
1993, the City Council considered Amendment of Ordinance NO. 137
establishing "Adult Entertainment Facilities /Businesses"
regulations for the purpose of creating a comprehensive set of
requirements applicable to adult businesses and related uses; and
WHEREAS, at its meeting of January 6, 1993, the City Council
opened the public hearing and closed the public hearing; and
WHEREAS, the City Council after review and consideration of
the information contained in the Planning Commission Staff Reports
dated December 20, 1991, February 11, 1992, and the City Council
Staff Report dated November 18, 1992 has reached its decision on
this matter; and
WHEREAS, the City Council has determined that the proposed
ordinance is exempt from CEQA on the basis of Section No.
15061(b)(3) of the CEQA State Guidelines in the proposed ordinance
does not have the potential for causing a significant effect on the
environment; and
WHEREAS, the City Council is of the opinion that the
regulation of "adult businesses" is required for the preservation
of the integrity of existing commercial and residential areas
within close proximity thereto, is in the public interest and would
promote the general welfare of the community; and
WHEREAS, the City Council has determined that the proposed
Adult Business Ordinance shall be made a part of the City's Zoning
Ordinance.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. The City Council determined that the proposed
ordinance is exempt from CEQA on the basis of Section No.
15061(b)(3) of the CEQA State Guidelines in the proposed ordinance
does not have the potential for causing a significant effect on the
environment.
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SECTION 2. The City Council after review and consideration
of the information contained in the Planning Commission Staff
Reports dated December 20, 1991, February 11, 1992, and the City
Council Staff Report dated November 18, 1992 has determine that the
regulation of "adult businesses" is required for the preservation
of the integrity of existing commercial and residential areas
within close proximity thereto, is in the public interest, would
promote the general welfare of the community, and that the
regulations as stated in the attached (Exhibit A) regulating adult
businesses be adopted.
SECTION 3. The City Council adopts the attached draft
Ordinance as written and attached (Exhibit A) which is to be
incorporated in the City's Zoning Ordinance.
SECTION 4. That if any section, subsection, sentence,
clause, phrase, or word of the attached Ordinance (Exhibit A) is
for any reason held to be invalid by a court of competent
jurisdiction, such decision shall not affect the validity of the
remaining portions of the City's Zoning Ordinance. The City
Council of the City of Moorpak hereby declares that it would have
passed and adopted this Ordinance and each and all provisions
thereof, irrespective of the fact that any one or more of said
provisions may be declared to be invalid.
PASSED, APPROVED AND ADOPTED this day of January, 1993.
Mayor
Paul W. Lawrason, Jr.
City of Moorpak
ATTEST:
Lillian E. Hare
City Clerk
Attachment:
Exhibit A - Draft Ordinance
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PROPOSED ADDITION TO ZONING ORDINANCE
ARTICLE 1 - ADULT ENTERTAINMENT FACILITIES /BUSINESSES ORDINANCE
Section 1 -100 - Purpose
A. The purpose of adoption of these provisions of this chapter is
to establish a comprehensive set of regulations applicable to
adult businesses and similar related uses.
B. In adopting this article, it is recognized that certain types
of adult businesses possess objectionable operational
characteristics which when concentrated can have a deleterious
effect upon adjacent areas. It is also recognized that
locating the adult entertainment facilities covered by this
article in the vicinity of facilities frequented by minors
will cause the exposure of minors to adult material which,
because of their immaturity, may adversely affect them. Many
persons are offended by the public display of certain sexual
material and as such, special regulation of these uses are
necessary to insure that these adverse effects will not
contribute to the blighting or downgrading of the surrounding
neighborhood and have an adverse effect on minors (Patrick J.
Rohan, Zoning and Land Use Controls, Chapter II, Adult
Entertainment Zoning, 1979, pp 11 -1 thru 11 -92, Mathew Bender,
Pub., it is noted that in the Young vs. American Mini Theaters
(Detroit) case record, a sociologist, Dr. Mel Ravitz, had
testified prior to the adoption of the ordinance, that
concentrations of adult uses have deleterious effects on
neighboring areas).
Section 1 -101 - Definitions
1. Adult Arcade - An establishment where, for any form of
consideration, one or more motion picture projectors, slide
projectors, or similar machines for viewing of five or fewer
persons each are used to show films, motion pictures, video
cassettes, slides, or other photographic reproductions that
are characterized by the emphasis upon the depiction or
description of specified sexual activities or specified
anatomical areas.
2. Adult Book Store - means an commercial establishment that has
twenty -five percent or more of its stock in books, magazines,
photographs, drawings, motion pictures, films or other visual
representations which is distinguished or characterized by its
emphasis on matter depicting, describing, or related to
specific sexual activity of specified anatomical areas such as
intercourse, homosexual acts, masturbation, fellatio,
cunnilingus, bestiality, sodomy, sadomasochistic abuse or
other sexual excitement or sexual conduct.
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3. Adult Business - means any business which is conducted
exclusively for the patronage of adults, and as to which
minors are specifically excluded for patronage thereat, either
by law or by the operators of such business. "Adult business"
shall also mean and include adult book stores, adult theaters,
massage parlors, modeling studios, adult hotel /motels, adult
cabaret, adult arcade, sexual encounter establishment, but not
including those uses or activities and regulations which are
pre - empted by State law.
4. Adult Cabaret - A nightclub, bar, restaurant, or similar
establishment that regularly features live performances that
are characterized by the exposure of specified anatomical
areas or by other specified sexual activities, or films,
motion pictures, video cassettes, slides or other photographic
reproductions in which a substantial portion of the total
presentation time is devoted to the showing of material that
is characterized by the emphasis upon the depiction or
description of specified sexual activities or specified
anatomical areas.
5. Sexual Encounter Establishment - An establishment other than
a hotel, motel, or similar establishment offering public
accommodations, which, for any form of consideration, provides
a place where two or more persons may congregate, associate,
or consort in connection with specified sexual activities or
the exposure of specified anatomical areas. This definition
does not include an establishment where a medical
practitioner, psychologist, psychiatrist, or similar
professional person licensed by the state engages in sexual
therapy.
6. Adult Hotel /Motel - means a hotel or motel which provides,
through closed circuit television, or other media, material
which is distinguished or characterized by the emphasis on
matter depicting or describing or related to specific sexual
activities or specified anatomical areas and which rented
rooms for less than ten (10) hours.
7. Adult Theater - means a theater, concert hall, auditorium, or
similar establishment which presents live entertainment or
motion pictures or slide photographs, which are distinguished
or characterized by their emphasis on matter depicting,
describing or related to specified sexual activity or
specified anatomical areas.
8. "Material" - relative to adult businesses, means and includes
but is not limited to accessories, books, magazines,
photographs, prints, drawings, paintings, motion pictures and
pamphlets or any combination thereof.
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9. Massage Parlor - means any establishment required to be
licensed pursuant to Chapter 5.48 of the Municipal Code.
10. Modeling Studio - means any establishment of business which,
provides for members of the public, the services of a live
human model for the purpose of reproducing the human body,
wholly or partially in the nude, by means of photography,
painting, sketching, drawing or other practical form.
This definition regarding modeling studios shall not apply to
any school of art operated by an individual, firm association,
partnership, corporation or institution which meets the
requirements established in the Education Code of the State of
California for issuance or conferring of a diploma.
11. "Specified anatomical areas" - means:
a. Less than completely and opaquely covered:
1. Human genitals, pubic region,
2. Buttocks, anus, and
3. Female breasts below a point immediately above the
top of the areola, and
4. Human male genitals in a discernible turgid state,
even if completely and /or opaquely covered.
12. "Specified sexual activities" - means:
1. Human genitals in a state of sexual stimulation or
arousal; and /or
2. Acts of human masturbation, sexual stimulation or
arousal, and /or
3. Fondling or other erotic touching of human
genitals, pubic regions, buttocks or female
breasts.
Section 1 -102 - Conditional Use Permit - Required
All uses subject to the provisions of this chapter shall
comply with all of the regulations contained in this title,
and the following regulations:
A. Prior to the establishing or conducting of any adult
business, a Conditional Use Permit therefor shall be
approved by the City Council;
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B. No Adult Business shall be granted a Conditional Use
Permit unless the unless the following criteria can be
met:
1. Is classified in the CPD (Commercial Planned
Development) zone,
2. Is not within five hundred feet of any lot
classified in any of the R (Residential) zones,
3. Is not within one thousand feet of any lot upon
which there is located another adult business,
4. Is not within one thousand feet of any lot upon
which there is located a church, educational
institution,
5. Is not within five hundred feet of any lot upon
which there is located a business with a type 40,
42, 48 or 61 on -sale alcoholic beverage license,
and
6. Is not within one thousand feet upon which there is
located a city - owned, operated and maintained
existing or proposed park
The City shall render a decision on the Conditional Use Permit
within three months that the application for the Conditional
Use Permit is deemed complete.
Section 100 -103 - Abandonment of Nonconforming Uses
All Adult Businesses which were lawfully in existence as of
the effective date of this ordinance codified in this chapter,
and were rendered nonconforming by the application thereto of
the provisions of this chapter, shall be subject to abatement
in the times and manner set forth in Section 8113 -5 of this
Zoning Ordinance (Other Nonconforming Uses {No longer
permitted}).
Section 100 -104 - Severability Clause
If, for any reason, any provision of this ordinance is
declared invalid, such validity shall not effect the other
provisions of this ordinance which can be given effect without
the invalid provisions. To this end, the provisions of this
ordinance shall be deemed severable.
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