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HomeMy WebLinkAboutS06-City Attorney .. CITY OF SAN BER.--ARDINO - REQUEST ~R COUNCIL ACTION From: James F. Penman, City Attorney Subject: Urgency Ordinance Amending Development Code Section 19.06.030(2)(A) regarding Adult Businesses Dept: City Attorney December 15, 1994 Date: Synopsis of Previous Council action: 02/22/94 - The Mayor and Common Council adopted MC-896, an Urgency Ordinance to allow adult businesses in the IL, Industrial Light, land use designation,~ and directed staff to process a Development Code Amendment through the normal process. 08/15/94 - The Mayor and Common Council adopted MC-909, an ordinance to allow adult businesses in the IL, Industrial Light, land use district. Recommended motion: Adopt Urgency Ordinance ~~fi. ignature Henry Empefto, Jr. Phone: 5235 Contact person: Supporting data attached: Ward: FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Acct. Description) Finance: Council Notes: 75-0262 Agenda Item No s -,=, ,. CITY OF SAN BERN.ARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT Currently the Development Code permits adult businesses, subj ect to"' a Conditional Use Permit, only in the CH and IL (Commerical Heavy and Industrial Light) land use districts and provided that they are located more than 2,000 feet from another adult business, and more than 1,000 feet from any religious institution, school, public park, or residentially used or residentially zoned property. This Development Code Amendment will prohibit adult businesses from locating within 1,000 feet of any religious institution which has received development permit approval prior to December 19, 1994. All other location restrictions regarding adult businesses in the Development Code will remain the same. Adult businesses will still be prohibited from locating in any residential, commercial or industrial district except in CH or IL. Adul t businesses will still be prohibited from locating within 2,000 feet from another adult business and within 1,000 feet from any school, public park, or residentially used or residentially zoned property. 75-0264 16 17 18 19 20 21 22 - L, :) 1 2 3 4 5 6 7 8 ORDINANCE NO. AN URGENCY ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER 19.06, SECTION 19.06.030(2)(A) OF THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) REGARDING ADULT BUSINESSES AND DECLA~ING THE URGENCY THEREOF. THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO ORDAIN AS FOLLOWS: SECTION 1. Section 19.06.030 (2) (A) of the Municipal Code (Development Code) is amended to prohibit the establishment or substantial enlargement of an adult business within 1,000 feet of 9 any religious institution which received development permit 10 approval before December 19, 1994; all other provisions of Section 11 19.06.030(2)(A) remain unchanged including the requirement that 12 adult businesses are only permitted in the CH and IL land use 13 districts. 14 The development standards of Section 19.060.030 (2) (A) of the 15 Development Code is hereby amended to read as follows (see Attachment A, Development Code Pages II-91-93, attached and incorporated herein by reference): "14. Development Standards. The following standard~ shall apply to adult businesses: 1. Prohibition. It is unlawful to cause or permit the establishment or substantial enlargement of an adult arcade, adult bookstore, adult cabaret, adult motel, adult motion picture 23 theater, adult theater, massage parlor or sexual encounter 24 establishment within 2,000 feet of another such business or within 25 1,000 feet of any religious institution which received development 26 permit approval before December 19, 1994, any school or any public 27 park within the City or within 1,000 feet of any property 28 designated for residential use or used for residential purposes. HE:ao[Adult2.0rdJ Dec~er 15, 1994 ,. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 c ~ V Adult Businesses are permitted subject to a CUP only in the CH and IL land use districts." SECTION 2. Uroency. This urgency ordinance must take effect immediately in order to protect the public health, safety, and welfare, and to protect the City's ordinances from potential Constitutional challenges. Religious institutions in certain IL land use districts, if granted development permit approval in the future, would significantly reduce the reasonably available areas where adult businesses may be located. It is necessary that this ordinance take effect immediately to safeguard the City's ordinances from potential Constitutional challenges in light of the 1993 United States Court of Appeals, Ninth Circuit, decision in Tooanoa Press Inc. v. City of Los Anoeles, 989 Fed 2d. 1524, which recited the United States Supreme Court ruling in City of Renton. et al. v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed. 2d 29 (1985) that a city's ordinances must provide adult businesses a reasonable opportunity to open and operate within the city. III III III III III III III III III III HE:ao[Adult2.0rdl 2 DeceMber 15, 1994 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II I' :1 c o AN URGENCY ORDINANCE...AMENDING CHAPTER 19.06, SECTION 19.06.030(2)(A) OF THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT CODE) REGARDING ADULT BUSINESSES AND DECLARING THE URGENCY THEREOF. -I HEREBY CERTIFY that the foregoing Ordinance was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 1994, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT NEGRETE CURLIN HERNANDEZ OBERHELMAN DEVLIN POPE-LUDLAM MILLER City Clerk The foregoing Ordinance is hereby approved this day of , 1994. Tom Minor, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN, City Attorney By: ~ E;>~~~. HE:ao[Adult2.0rd] 3 December 15. 1994 2. COMMERClAL DISTRIcrs -19.ll6 LANn U~F. n&hucr SPECIFIC STANnARn~ In addition to the general development requirements contained in Olapter 19.20 <Pror-ty Development S~ds~, the following standards shall apply to spedfic: eotnmercialland use districts. (See Table 06.03 on previous page.) For residential uses in oommerdalland use districts, see Table 4.03 and the standards contain€d in C1apter 19.04.030 (2). A. ADULT BUSINESSES Adult businesses are permitted, subject to a Conditional Use Permit, only in the CH and IL land use districts. For the purposes of this Section, the following definitions shall apply: 1. Adult ~ade. An establishment where, for any form of considera- tion, one or more motion picture projectors, slide projectors or similar machines, for viewing by 5 or fewer persons each, are used to show films, motion pictures, video cassettes, slides or other photographic rep1uduc:tions which are characterized by an em- phasis upon the depiction or desaiption of "specified sexual ac- tivities" or "specified anatomical areas." 2. Adult BonklltmP. An establishment which has as a substantial portion of its stoclc-in-trade and offers for sale for any form of am- sideration any 1 or more of the following: a. Books, magazines, periodi....lc or other printed matter, or photographs, films, motion pictures, video cassettes, slides or other visual.co!". sentations which are charac- terized by an emphasis upon the depiction or desaiption of "specified sexual activities" or "specified anatomicall1'l!llS"; or b. Instruments, devices or paraphernalia which are designed for use in oonnection with "specified sexual activities." 3. Adult Cahllft!t. Nightclub, bar, restaurant or similar establishment which regularly features live performances which are charac:terized bythe~of"specifi~anatomicalareas"orby"~ sexual activities," or films, motion pictures, video cassettes, slides or other photographic reproductions which are c:harac:terized by an emphasis upon the depiction or desaiption of "specified sexual ac- tivities" or "spedfi~ anatomical areas." IT.,1 Attachment SI9l "A" o C~RCIAL DISTRICTS -19.116 -....I 4. Adult Motel. A motel or similar establishment offering public accommodations for any form of consideration which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproduc- tions which are characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomi- cal areas." 5. Adult Motion PicturE! ThpatE!r. An establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are shown, and in which a substantial portion of the total presentation time is devoted to the showing of material which is characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomical areas." 6. Adult ThE!atE!r. A theater, concert hall, auditorium or similar establishment which, for any form of consideration, regularly fea- tures live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities." 7. Establishment of an Adult EntE!rtainmPnt Busin_". Includes any of the following: a. The opening or commencement of any such business as a new business; b. The conversion of an existing business, whether or not an adult entertainment business, to any of the adult enter- tainment businesses defined herein; c. The addition of any of the adult entertainment bus- inesses defined herein to any other existing adult entertain- ment business; or d. The relocation of any such business. 8. Massa~ Parlor. An establishment where, for any form of considera- tion, massage, alcohol rub, fomentation, electric or magnetic treat- ment, or similar treatment or manipulation of the human body is administered unless such treatment or manipulation is ad- ministered by a medical practitioner, chiropractor, acupuncturist, physical therapist or similar professional person licensed by the State. This definition does not include an athletic club, health club, school, gymnasium, reducing salon, spa or similar establishment where massage or similar manipulation of the human body is of- fered as an incidental or accessory service. U-92 5191 COMMERCIAL DISTRlcrs -19.ll6 9. "_Ii.. A] Enrountpr EstablishmE'nt An eStablishment, other than a hotel, motel or similar establishment offering public accommoda- tions, which, for any form of consideration, provides a place where 2 or more persons may congregate, associate or consort in connec- tion with "specified sexual activities" or the exposure of "specified - anatomical areas." This definition does not include an es- tablishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the State engages in sexual therapy. 10. Specified Anatomical Areas. Includes any of the following: a. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areole; or b. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. 11. Specified Sexual Activities. Includes any of the following: a. The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts; . b. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy; Co Masturbation, actual or simulated; or d. Excretory functions as part of or in connection with any of the activities set forth in subdivisions a. through Co of this subsection. 12 Substantial Enla~ment. The increase in floor area occupied by the business by more than 10%, as such floor area exists on the ef- fective date of this Development Code. 13. Substantial Portion. For the purposes of subsection 2A.2 of this section, "substantial portion" shall mean 2O'JI. or more of the face value of the stock in trade, or 20% of the floor area of the store, whichever is more. MC-799 7-2-91 14. Development Standards. The fOllowing standards shall apply to adult businesses: 1. Prohibition. It is unlawful to cause or permit the establishment or substantial enlargement of an adult arcade, adult bookstore, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor or sexual encounter establishment within 2,000 feet of another such business or within 1,000 feet of any religious institution which received development permit approval before December 19, 1994, any school or any public park within the City or within 1,000 feet of any property designated for residential use or used for residential purposes. Adult Businesses are permitted subject to a CUP only in the CH and IL land use districts. . 11-93 1192 .