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HomeMy WebLinkAbout31 City attorney4 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 � 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. 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 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] 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 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] 0 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 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