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CJrrY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Al Boughey, Director Subject: Development Code Amendment No. 95-01
Adult Business Ordinance Clarification
Dept: Planning & Building Services
Date: May 2, 1995 MCC Date: May 15, 1995
Synopsis of Previous Council Action:
12/15/94 The Mayor and Common Council approved an Urgency Ordinance to clarify language
pertaining to Adult Businesses.
02/21/95 Development Code Amendment No. 95-01 was presented to the Planning Commission
who forwarded it to the Mayor and Common Council with a recommendation of approval.
Recommended Motion:
That the hearing be closed; the first reading be waived; and that the Ordinance be laid over for final
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Contact person: Al Boughey Phone: 384-5357
Supporting data attached: Staff Report: Ordinance Ward: Citywide
FUNDING REQUIREMENTS: Amount: N/A
Source:(Acct. No.)
(Acct. Description)
Finance:
Council Notes:
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Agenda Item No. _
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
SUBJECT: DEVELOPMENT CODE AMENDMENT (DCA) NO. 95-01
REQUEST
This is a City initiated proposal to amend the text of Development Code §19.06.030(2)(A) to
clarify the applicability of the 1,000 foot minimum distance criteria for establishing adult
businesses near previously permitted religious institutions.
KEY ISSUES
The key issues are as follows:
0 The City Attorney's Office determined that clarification was needed regarding the
applicability of the minimum 1,000 foot distance criteria for establishing adult
businesses near previously permitted religious institutions.
• The provision was adopted on December 20, 1994 as an Urgency Ordinance and
is now being proposed for adoption as an ordinance.
• The Urgency Ordinance (MC-915) stipulates that an adult business shall not be
established within 1,000 feet of any religious institution which received
development permit approval before December 19, 1994,
• The proposed amendment will affect the CH, Commercial Heavy and IL,
Industrial Light General Plan Land Use Designations, Citywide.
Detailed background information pertaining to the legislative history and purpose of the adult
business ordinance and this amendment is available in the Planning Commission Staff Report
(February 21, 1995). (See Exhibit 1)
ENVIRONMENTAL
Staff has evaluated the proposed amendment and determined that it is exempt from CEQA
pursuant to the CEQA Guidelines §15061(b)(3). The proposal provides clarification to a
previously adopted ordinance and does not have the potential to result in any significant effects
on the environment.
Development Code Amendment No. 95-01
Mayor and Common Council Meeting of
May 15, 1995
Page 2
PLANNING COMMISSION RECOMMENDATION
The Planning Commission reviewed Development Code Amendment No. 95-01 on February 7,
1995, and voted unanimously (8 ayes, 0 Nays, 0 Abstains and 2 Absent) to recommend to the
Mayor and Common Council approval of the Development Code Amendment and adoption of
the Ordinance, based upon the attached Findings of Fact (Exhibit 2). Planning Commissioners
in attendance: Affaitati, Cole, Gaffney, Kipp, Melendez, Stone, Strimpel and Thrasher.
STAFF RECOMMENDATION
Staff recommends that the Mayor and Common Council approve the Development Code
Amendment (DCA No. 95-01) based on the attached Findings of Fact (Exhibit 2) and adopt the
Ordinance (Exhibit 3).
Prepared by: Deborah Woldruff, Associate Planner
Prepared for: Al Boughey, AICP,
Director of Planning and Building Services
EXHIBITS
1. Planning Commission Staff Report (February 21, 1995)
Attachments:
A. Findings of Fact (Not Included)
B. Proposed Language (Not Included)
2. Findings of Fact
3. Ordinance
EXHIBIT 1
SUMMARY CITY OF SAN BERNARDINO PLANNING DIVISION
CASE: DEVELOPMENT CODE AGENDA ITEM: 3
AMENDMENT NO. 95-01 HEARING DATE: 2-21-95
WARD: CITYWIDE
APPLICANT: City of San Bernardino OWNER: N/A
300 North "D" Street
San Bernardino, CA 92418
REQUESTALOCATION- A City initiated proposal to amend the text of the Development Code to clarify the
applicability of the 1,000 foot minimum distance criteria for establishing adult businesses near previously
permitted religious institutions. This ordinance was adopted on December 20, 1994 as an Urgency Ordinance
and is being proposed for adoption as an ordinance and will affect the CH, Commercial Heavy and IL,
Industrial Light General Plan Land Use Designations, Citywide.
ExISTING LAND USE
PROPERTY LAND USE DESIGNATION
SUBJECT N/A N/A
NORTH N/A N/A
SOUTH N/A N/A
EAST N/A N/A
WEST N/A N/A
GEOLOGIC/SEISMIC YES 11 FLOOD HAZARD YES 0 SEWERS: YES El
HAZARD ZONE: No 0 ZONE: NO 0 .1 1 NO 0
HIGH FIRE HAZARD YES 11 AIRPORT YES 0 REDEVELOPMENT YES 0
ZONE: No 0 NOISE/CRASH NO N PROJECT AREA: NO 0
ZONE:
ENVIRONMENTAL FINDINGS: STAFT RECOMMENDATION:
0 Not Applicable 0 E.I.R. w/ Significant 0 APPROVAL
0 Exempt Effects
0 No Significant 0 CONDITIONS
Effects 0 Significant Effects,
0 Potential Effects, See Attached E.R.C. 0 DENIAL
Mitigating Minutes
Measures, 0 CONTINUANCE
No E.I.R. TO:
DEVELOPMENT CODE AMENDMENT NO. 95-01
AGENDA ITEM: 3
HEARING DATE: February 21, 1995
Page 2
REQUEST
This request is a City initiated proposal to amend the text of Development Code
§19.06.030(2)(A) to clarify the applicability of the 1,000 foot minimum distance criteria for
establishing adult businesses near previously permitted religious institutions. This provision was
1 adopted on December 20, 1994 as an Urgency Ordinance and is being proposed for adoption as
an ordinance and will affect the CH, Commercial Heavy and IL, Industrial Light General Plan
Land Use Designations, Citywide.
1
BACKGROUND
In January 1994, the City of San Bernardino determined that the areas which could potentially
allow adult businesses, as outlined in the Development Code, may be insufficient in size to
adequately provide reasonable opportunities for adult-oriented businesses to locate in the City.
In order to safeguard the City's ordinances from potential Constitutional challenges in light of
the then recent 1993 United States Court of Appeals, Ninth Circuit, decision in Topan a Press
Inc. V. City of Los Angeles, 989 Fed.2d. 1524, an amendment to the Development Code was
required.
On February 22, 1994, the Mayor and Common Council adopted an urgency ordinance (MC-
896) to allow adult-oriented businesses to operate in the IL land use designation in addition to
the CH land use designation subject to a conditional use permit (CUP). Staff was directed to
prepare a Development Code Amendment to codify the urgency ordinance for inclusion in the
Development Code. The amendment (DCA No. 94-01) was prepared as requested and on July
19, 1994, the Mayor and Common Council adopted it as MC-909.
It was determined by the City Attorney's Office that clarification was needed regarding the
applicability of the minimum 1,000 foot distance criteria for establishing adult businesses near
previously permitted religious institutions. On December 15, 1994, the Mayor and Common
ICouncil adopted an urgency ordinance (MC-915)to prohibit the establishment of adult businesses
within 1,000 feet of any religious institution which received development permit approval before
December 19, 1994. Staff was directed by the Mayor and Common Council to prepare an
amendment to codify the urgency ordinance for inclusion in the Development Code.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) STATUS
The project is exempt from CEQA pursuant to the CEQA Guidelines §15061(b)(3) which states
that CEQA only applies to projects and/or
DEVELOPMENT CODE AMENDMENT NO. 95-01
AGENDA ITEM: 3
HEARING DATE: February 21, 1995
Page 3
I activities which have the potential for causing a significant effect on the environment. As stated,
this project is to clarify the applicability of the 1,000 foot minimum distance criteria for
establishing adult businesses near previously permitted religious institutions. Staff has evaluated
DCA No. 95-01 and determined that because the proposal is simply a clarification, it does not
have the potential to result in any significant effects on the environment.
ANALYSIS
Amendment Proposal
Currently the Development Code permits adult businesses, subject to a CUP, in the CH,
Commercial Heavy and IL, Industrial Light land use designations. The distance criteria for
establishing adult businesses are: a minimum 2,000 feet from another adult business; and, a
minimum 1,000 feet from any religious institution, school, public park, or residentially used or
zoned property.
This Development Code Amendment (DCA No. 95-01)will clarify the language which prohibits
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 the
CH or IL. Adult 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 zoned
property.
General Plan Consistency
The proposed Development Code Amendment is consistent with the General Plan in that General
Plan Policy 1.6.2 requires that the location of adult bookstores and businesses be controlled
based on proximity to sensitive land uses including religious facilities.
DEVELOPMENT CODE AMENDMENT NO. 95-01
AGENDA ITEM: 3
HEARING DATE: February 21, 1995
Page 4
CONCLUSION
This City initiated request is to amend the San Bernardino Municipal Code (Development Code)
® to clarify the applicability of the 1,000 foot minimum distance criteria for establishing adult
businesses near previously permitted religious institutions. The amendment proposal has been
determined to be exempt from CEQA because is does not have the potential to result in any
significant impacts on the environment.
RECONflVIENDATION
Staff recommends that the Planning Commission recommend that the Mayor and Common
Council approve Development Code Amendment No. 95-01 based on the attached Findings of
Fact (Attachment A).
ZRpec,
Michaessistant Director
Planning and Building Services
U#—
Cebdorah Woldruff
Associate Planner
ATTACBMENTS:
A. Findings Of Fact
B. Proposed Language
I
I
EXHIBIT 2
Development Code Amendment No. 95-01
Mayor and Common Council Meeting of
May 15, 1995
Page 1
FINDINGS OF FACT
Development Code Amendment No. 95-01
1. The proposed amendment is consistent with the General Plan in that General Plan Policy
1.6.2 requires that the location of adult bookstores and businesses be controlled based on
proximity to sensitive land uses including religious facilities.
2. The proposed amendment would not be detrimental to the public interest, health, safety,
convenience, or welfare of the City in that it serves only to clarify the applicability of
the minimum 1,000 foot distance criteria contained in Development Code
§19.06.030(2)(A) for establishing adult businesses near previously permitted religious
institutions.
0
1 ORDINANCE NO.
2 AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING CHAPTER
19.06, SECTION 19.06.030 (2) (A) OF THE SAN BERNARDINO MUNICIPAL CODE
3 (DEVELOPMENT CODE) REGARDING ADULT BUSINESSES.
4 THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO DO
ORDAIN AS FOLLOWS:
5 SECTION 1. Section 19.06. 030(2) (A) of the Municipal Code
6 (Development Code) is amended to prohibit the establishment or
7 substantial enlargement of an adult business within 1, 000 feet of
8 any religious institution which received development permit
9 approval before December 19, 1994 ; all other provisions of Section
10 19. 06. 030 (2) (A) remain unchanged including the requirement that
11 adult businesses are only permitted in the Ch and IL land use
12 districts.
13 The development standards of Section 19.060. 030(2) (A) of the
14 Development Code is hereby amended to read as follows (see
15 Attachment A, Development Code Pages II-91-93, attached and
16 incorporated herein by reference) :
17 1114. Development Standards. The following standards shall
18 apply to adult businesses:
19 1. Prohibition. It is unlawful to cause or permit the
20 establishment or substantial enlargement of an adult arcade, adult
21 bookstore, adult cabaret, adult motel, adult motion picture
22 theater, adult theater, massage parlor or sexual encounter
23 establishment within 2, 000 feet of another such business or within
24 1, 000 feet of any religious institution which received development
25 permit approval before December 19, 1994, any school or any public
26 park within the City or within 1, 000 feet of any property
27 designated for residential use or used for residential purposes.
28
r,-h ��'�
1 AN ORDINANCE. .AMENDING CHAPTER 19.06, SECTION
19.06.030 (2) (A) OF THE SAN BERNARDINO MUNICIPAL CODE (DEVELOPMENT
2 CODE) REGARDING ADULT BUSINESSES.
3 Adult Businesses are permitted subject to a CUP only in the CH and
4 IL land use districts. "
5 I HEREBY CERTIFY that the foregoing ordinance was duly adopted
6 by the Mayor and Common Council of the City of San Bernardino at a
7 meeting thereof, held on the day of
8 1995, by the following vote, to wit:
9 Council Members: AYES NAYS ABSTAIN ABSENT
10 NEGRETE
11 CURLIN
12 HERNANDEZ
13 OBERHELMAN
14 DEVLIN
15 POPE-LUDLAM
16 MILLER
17
18 Rachel Clark, City Clerk
19 The foregoing ordinance is hereby approved this day
20 of , 1995„
21
22
23 Tom Minor, Mayor
City of San Bernardino
24 Approved as to form
25 and legal content:
20 JAMES F. PENMAN,
City ttorney
28
2
COMMERCIAL DISTRICTS - 19.06
ATTACHMENT "A"
2. LAND USE DISTRICT SPECIFIC STANDARDS
In addition to the general development requirements contained in Chapter 19.20(Property
Development Standards), the following standards shall apply to specific commercial land
use districts. (See Table 06.03 on previous page.) For residential uses in commercial
land use districts, see Table 4.03 and the standards contained in Chapter 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 Arcade. An establishment where, for any form of consideration,
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
reproductions which are characterized by an emphasis upon the depiction
or description of "specified sexual activities" or "specified anatomical
areas."
2. Adult Bookstore. An establishment which has as a substantial portion of
its stock-in-trade and offers for sale for any form of consideration any 1
or more of the following:
a. Books, magazines, periodicals or other printed matter, or
photographs, films, motion pictures, video cassettes, slides or
other visual representations which are characterized by an
emphasis upon the depiction or description of "specified sexual
activities" or "specified anatomical areas"; or
b. Instruments, devices or paraphernalia which are designed for use
in connection with "specified sexual activities."
3. Adult Cabaret. Nightclub, bar, restaurant or similar establishment which
regularly features live performances which are characterized by the
exposure of "specified anatomical areas" or by "specified sexual
activities," or films, motion pictures, video cassettes, slides or other
photographic reproductions which are characterized by an emphasis upon
the depiction or description of "specified sexual activities" or "specified
anatomical areas."
U-91 591
COMMERCIAL DISTRICTS - 19.06
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 reproductions which are
characterized by an emphasis upon the depiction or description of
"specified sexual activities" or "specified anatomical areas."
5. Adult Motion Picture Theater. 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 Theater. A theater, concert hall, auditorium or similar
establishment which, for any form of consideration, regularly features live
performances which are characterized by the exposure of "specified
anatomical areas" or by "specified sexual activities."
7. Establishment of an Adult Entertainment Business
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 entertainment businesses
defined herein;
C. The addition of any of the adult entertainment businesses defined
herein to any other existing adult entertainment business; or
d. The relocation of any such business.
8. Massage Parlor. An establishment where, for any form of consideration,
massage, alcohol rub, fomentation, electric or magnetic treatment, or
similar treatment or manipulation of the human body is administered
unless such treatment or manipulation is administered 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 offered as an incidental or accessory service.
9. 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 2 or more persons may
congregate, associate or consort in connection with "a=ified sexual
II-92 591
COMMERCIAL DISTRICTS - 19.06
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.
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 areola; 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;
C. 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 c. of this subsection.
12. Substantial Enlargement. The increase in floor area occupied by the
business by more than 10%, as such floor area exists on the effective date
of this Development Code.
s
13. Substantial Portion. For the purposes of subsection 2.A.2. of this section,
"substantial portion" shall mean 20% 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.
II-93 L92