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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: James F. Penman Subject: Ordinance of the City of San Bernardino Amending Section
5.14.120 of the San Bernardino Municipal Code Relating to Appeals
Dept: CITY ATTORNEY Involving Entertainment -Dances and Adult Entertainment and
Date: September 3, 1999
Declaring the Urgency Thereof
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Synopsis of Previous Council action:
7/12/99 - Adopted Ord. MC -1050 (effective 7- 12 -99)
7/19/99 - Adopted Ord. MC -1051 (effective 7- 19 -99)
7/19/99 - Adopted Ord. MC -1052 (effective 8- 18 -99)
Recommended motion:
That said Ordinance be adopted.
Contact person: Huston T. Carlyle, Jr. Phone: 5355
Supporting data attached:
FUNDING REQUIREMENTS: Amount: N/A
Source:
Council Notes:
Ward:
Finance:
Agenda Item No. 2/
�/7/ ?"7
STAFF REPORT
On January 21, 1999, the Court of Appeal, Fourth Appellate District, issued an opinion in
the case of Haas v. County of San Bernardino, 69 Cal. App. 4th 1019. The Court of Appeal
determined that under the particular circumstances of the case before it, a hearing process that
involved one appeal hearing only in which the hearing officer is retained and paid for by the County
of San Bernardino constituted a deprivation of the constitutional due process rights of the other party
to a fair hearing.
In late spring, the California State Supreme Court accepted the appeal on this case. This
means that the published Court of Appeal decision is vacated, and cannot be relied upon. Since no
one knows how the Supreme Court will ultimately rule on this case, and since it is not contemplated
that such a ruling will be issued until some time next year, it is proposed that the City's current
ordinance be amended to provide for a second level of appeal review by a duly constituted,
independent body, i.e.: Planning Commission. While the facts in the Haas could not be identically
duplicated in this City, an abundance of caution would auger in favor of this proposed amendment
at this time.
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ORDINANCE NO.
ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.14.120 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO APPEALS
INVOLVING ENTERTAINMENT - DANCES AND ADULT ENTERTAINMENT AND
DECLARING THE URGENCY THEREOF
WHEREAS, the City of San Bernardino, California has reviewed and analyzed numerous
studies, reports, articles, judicial decisions, and the experience and legislative findings of other
municipalities and counties in Southern California, and around the country concerning the impacts,
or "secondary effects" of Adult Businesses (as that term is defined in Chapter 19.06 of this Code)
that provide live erotic entertainment where the Performers are nude, partially nude, or clothed in
attire commonly referred to as pasties and a g- string; and
WHEREAS, the Common Council has previously found that there are significant and serious
secondary effects from Adult Businesses that justify regulation to protect the public health, safety
and welfare; and
WHEREAS, the Common Council has previously been presented with evidence of those
secondary effects relating to zoning regulations; and
WHEREAS, in Barnes v. Glen Theaters (1991) 501 U.S. 560, the United States Supreme
Court found it to be constitutionally permissible to prohibit nudity, including public nudity in Adult
Businesses, in part due to the secondary effects associated with such public nudity in Adult
Businesses which secondary effects include, but are not limited to the increase in prostitution,
increase in sexual assaults, increase in the spread of sexually transmitted diseases and the increase
in criminal activity; and
WHEREAS, in Haas v. County of San Bernardino (1999) 69 Cal. App. 4th 1019, the Court
of Appeal, Fourth Appellate District has determined that one appeal hearing only in which a hearing
officer is retained and paid for by the County of San Bernardino, under the facts of that case,
constituted a deprivation of the constitutional due process rights of the other party to a fair hearing;
and
WHEREAS, even though the State Supreme Court has granted review of the appeal in the
Haas case, appeal(s) under the City's existing adult entertainment ordinance are anticipated in the
very near future.
NOW THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO DO ORDAIN AS FOLLOWS:
SECTION 1. Section 5.14.120 D and Section 5.14.120 E of Chapter 5.14 are hereby
II amended to read as follows:
"5.14.120 Appeal
D. The Hearing Officer shall render his/her decision within five days from the date of
the hearing. Said decision shall be sent by certified mail. Any applicant aggrieved by the decision
of the Hearing Officer shall have the right to appeal to the City Planning Commission. The right to
appeal to the City Planning Commission shall terminate upon the expiration of fifteen (15) days
HTC /js [APPEALS.ORD]
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following the deposit of said decision by certified mail and advising the applicant of his or her right
to appeal such decision to the City Planning Commission. The appeal hearing before the City
Planning Commission shall be held within twenty (20) days of the receipt by the City Clerk of the
appeal request. The Planning Commission shall render its decision within fourteen (14) days from
the date of the hearing. The decision of the Planning Commission shall be final and conclusive and
shall not be subject to appeal to the Mayor and Common Council. Pursuant to Code of Civil
Procedure Section 1094.6, any action to review the decision of the Planning Commission shall be
commenced not later than the ninetieth day after the Planning Commission's decision is rendered.
E. The Planning Commission shall take all lawful steps to insure than any applicant
aggrieved by its decision shall be afforded prompt judicial review of said Planning Commission's
decision."
SECTION 2. Urgency. This urgency ordinance shall take effect immediately in order
to preserve the public peace, health, and safety. It is necessary that this ordinance take effect
immediately to safeguard the City's ordinances from potential Constitutional challenges in light of
a recent court decision relating to the appeal hearing process of denied or revoked permits.
HTC /js [APPEALS.ORD]
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ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION
5.14.120 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO APPEALS
INVOLVING ENTERTAINMENT- DANCES AND ADULT ENTERTAINMENT 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 , 1999, by the following vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
ESTRADA
LIEN
VACANT
SCHNETZ
(VACANT)
ANDERSON
MILLER
CITY CLERK
The foregoing Ordinance is hereby approved this day of , 1999.
Approved as to form
and legal content:
JAMES F. PENMAN
City Attorney
By:e2�,,
HTC /js [APPEALS.ORD]
JUDITH VALLES, Mayor
City of San Bernardino