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HomeMy WebLinkAboutORD 769ORDINANCE NO. 769 AN INTERIM URGENCY ORDINANCE OF THE CITY OF PALM DESERT ADOPTING A MORATORIUM ON ADULT ENTERTAINMENT BUSINESSES WHEREAS, the City of Palm Desert ("City") adopted Chapter 5.88 of the Palm Desert Municipal Code ("Municipal Code") regulating adult entertainment businesses;. and WHEREAS, the City is currently in the process of amending its regulation of adult entertainment businesses to broaden the scope of such regulation and to conform to recent legal developments with respect to such regulation; and WHEREAS, to protect the public health, safety and welfare, California Government Code section 65858 authorizes the City to adopt interim urgency ordinances prohibiting any uses which may be in conflict with a contemplated zoning proposal which the City is studying or considering or intends to study or consider within a reasonable time; and WHEREAS, adult entertainment businesses in the incorporated area of the City of Palm Desert will require special supervision from public safety and health agencies of the City and County of Riverside in order to protect and preserve the health, safety and welfare of the patrons of such businesses, as well as citizens of the City; and WHEREAS, from a review of other City studies and the City's own surveys and testimonies from its citizens, there is convincing documented evidence that adult entertainment businesses, because of their very nature, have a deleterious effect on both existing businesses around them and the surrounding residential areas adjacent to them, causing among other adverse secondary effects, increased crime and downgrading of property value; and WHEREAS, it is recognized that adult entertainment businesses, due to their nature, have serious objectional operational characteristics, particularly when they are operating in close proximity to each other, thereby contributing to crime, lower property values, urban blight and downgrading of the quality of life in the adjacent area; and WHEREAS, increased crime and unhealthful conduct tend to accompany, concentrate around and be aggravated by sexually oriented businesses; such crime and unhealthful conduct includes but is not limited to prostitution, pandering, exposing minors to harmful materials, possession and distribution of obscene materials and child pornography, possession and sale of controlled substances and violent crimes against persons and property; and RWH61761 ORDINANCE NO. 769 WHEREAS, The City Council desires to minimize and control j these adverse secondary effects and thereby protect the health, safety and welfare of the citizens; protect the citizens from increased crime; preserve the quality of life; preserve the property values and the character of surrounding neighborhoods and businesses, deter the spread of urban blight and protect against the threat to health from the spread of communicable and sexually transmitted diseases; and WHEREAS, to protect the public health, safety and welfare, the City Council desires to adopt an interim urgency ordinance to prohibit the establishment of adult entertainment businesses which might potentially conflict with the proposed amendments to its regulation of such businesses in order to complete study and consideration of such proposal by the City Council. WHEREAS, the California Government Code section 65858 requires that such action be adopted by a four -fifths vote of the City Council; and NOW THEREFORE, The City Council of the City of Palm Desert does ordain as follows: SECTION 1. The City Council declares that the adoption of an interim urgency ordinance imposing a moratorium on the establishment of adult entertainment businesses is necessary for the immediate protection of the public health, safety and welfare and hereby finds and determines as follows: A. The City of Palm Desert ("City") adopted Chapter 5.8 of Palm Desert Municipal Code ("Municipal Code") regulating adult entertainment businesses; and B. The City is currently in the process of amending its regulation of adult entertainment businesses to broaden the scope of such regulation and to conform to recent legal developments with respect to the regulation of such uses; and C. Adult entertainment businesses in the incorporated area of the City of Palm Desert will require special supervision from public safety and health agencies of the City and County of Riverside in order to protect and preserve the health, safety and welfare of the patrons of such businesses, as well as citizens of the City; and D. From a review of other City studies and the City Is own surveys and testimonies from its citizens, there is convincing documented evidence that adult entertainment businesses, because of their very nature, have a deleterious effect on both existing businesses around f them and the surrounding residential areas adjacent to them, causing among other adverse secondary effects, increased crime and downgrading of property value; and RWH61761 - 2 - ORDINANCE NO. 769 E. It is recognized that adult entertainment businesses, due to their nature, have serious objectional operational characteristics, particularly when they are operating in close proximity to each other, thereby contributing to crime, lower property values, urban blight and downgrading of the quality of life in the adjacent area; and F. Increased crime and unhealthful conduct tend to accompany, concentrate around and be aggravated by sexually oriented businesses; such crime and unhealthful conduct includes but is not limited to prostitution, pandering, exposing minors to harmful materials, possession and distribution of obscene materials and child pornography, possession and sale of controlled substances and violent crimes against persons and property; and G. The City Council desires to minimize and control these adverse secondary effects and thereby protect the health, safety and welfare of the citizens; protect the citizens from increased crime; preserve the quality of life; preserve the property values and the character of surrounding neighborhoods and businesses, deter the spread of urban blight and protect against the threat to health from the spread of communicable and sexually transmitted diseases; and H. Unless the City Council adopts an interim urgency ordinance to prohibit the establishment of adult entertainment businesses, such property uses may be established within the City which might conflict with the proposed amendments to the City Is regulation of such businesses before completion and consideration of such proposed amendments by the City Council. SECTION 2. Pursuant to the authority granted to the City by California Government Code section 65858, the City Council hereby adopts as an interim urgency measure a moratorium as follows: Moratorium on Adult Entertainment Businesses (a) Entitlements --Prohibition. Notwithstanding any provision of the Municipal Code to the contrary, no entitlement or permit of any nature whatsoever shall be issued by the City for the commencement, establishment, expansion or modification of any adult entertainment business as defined in subsection (c) below during the effective period of this ordinance. RWH61761 -3- ORDINANCE NO. 769 (b) General Prohibition --Exemption. No person or entity shall commence, establish, operate, maintain, or engage in any adult entertainment business whether as an owner, operator, manager, employee, performer, volunteer, or otherwise, upon any property within the City during the effective period of this ordinance. Adult entertainment businesses lawfully in existence within the City upon the adoption of this ordinance may continue to operate so long as they do not violate any other provision of law; provided, however, that no such businesses shall be relocated, expanded or enlarged during the effective period of this ordinance. (c) Adult entertainment businesses are those businesses defined as follows: 1. "Adult Bookstore", "Adult Novelty Store" or "Adult Video Store" means a commercial establishment which (1) has as a significant or substantial portion of its stock -in -trade or (2) derives a significant or substantial portion of its revenues or (3) devotes a significant or substantial portion of its interior floor or display space or (4) devotes a significant or substantial portion of its business activities or employees' time, or advertising, to the sale, rental or viewing for any form of consideration, of any one or more of the following: t a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatom.,..;al areas; b. Instruments, devices, or paraphernalia which are designed for use in connection with specified sexual activities. C. An establishment may have other significant or substantial business purposes that do not involve the offering for sale rental or viewing of materials, depicting or describing specified sexual activities or specified anatomical areas, and still be categorized as adult bookstore, adult novelty store, or adult video store. Such other business purposes will not serve to exempt such establishments from being categorized as an adult bookstore, adult novelty store or adult video store so long as one of its significant or substantial business purposes is offering for sale or rental, for some form of consideration, the specified materials which depict or describe specified anatomical areas or specified sexual activities. RWH61761 - 4 - ORDINANCE NO. 769 2. "Adult motel" means a motel, hotel or similar commercial establishment which: (a) offers public accommodations, for any form of consideration, and which regularly provides or makes available to patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and which advertises the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off -premises advertising including but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television, or (b) offers a sleeping room for rent for a period of time less than ten (10) hours; or (c) allows a tenant or occupant to rent or sub -rent the sleeping room for a time period of less than ten (10) hours. 3. "Adult minimotion picture theater" means an enclosed building with a capacity of less than fifty persons used for presenting material distinguished or characterized by an emphasis on the portrayal of matter depicting or relating to specified sexual activities or specified anatomical areas for observation by patrons therein. 4. "Adult ,motion picture arcade" means any place to which the public is permitted or invited wherein coin or slug -operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors or other image -producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on the portrayal of matter depicting or describing specified sexual activities or specified anatomical areas. 5. "Adult motion picture theater" means an enclosed building with a capacity of fifty or more persons used primarily for presenting material distinguished or characterized by more than an emphasis on the portrayal of matter depicting, describing, or relating to specified sexual activities or specified anatomical areas for observation by patrons therein. 6. "Adult cabaret" means a nightclub, bar, restaurant bottle shop, theater or similar commercial establishment, whether or not alcoholic beverages are served, which features: (a) persons who appear nude or in a state of nudity or semi-nude; (b) live performances which .are. characterized by the exposure of specified anatomical areas or by specified sexual activities, or (c) films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. RWH61761 -5- ORDINANCE NO. 769 7. "Encounter center" or "rap studio" means any business agency or person who, for any form of consideration or gratuity, provides a place where two or more persons may congregate, assemble or associate for the primary purpose of engaging in, describing or discussing specified sexual activities or specified anatomical areas. 8. "Figure model studio" means any premises or mobile facility where there is conducted the business or transaction of furnishing, providing or procuring figure models who pose for the purpose of being observed or viewed by any person, or being sketched, painted, drawn, sculptured, photographed, filed, videotaped or otherwise similarly depicted in the state of nudity or semi -nudity before persons who pay a fee, or any other thing of value, as consideration, compensation or gratuity, for the right or opportunity to so observe a figure model, or for admission to, permission to or as a condition of, remaining on the premises. "Figure model studio" does not include any studio or classroom which is operated by any public agency, or any public or private educational institution authorized under California Education Code Section 94300 et seq., to issue and confer a diploma or degree. 9. The definition of "adult business" shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy. a. The relocation of any such adult entertainment establishment; or b. The substantial enlargement of any such adult entertainment establishment. 10. "Adult Entertainment Bureau" means any business or agency which, for any consideration whatsoever, furnishes or offers to furnish the services of an adult entertainer. (d) Additional definitions: The above -listed definitions of adult entertainment establishments incorporate the following definitions: 1. "Adult Entertainer" means a person who for any form of consideration or gratuity performs or appears in nude or in a state of nudity or semi -nudity, or whose performances are characterized by the exposure of specified anatomical areas or by specified sexual activities and whose performances are not theatrical performances in theaters, concert halls, or similar establishments that are not licensed as adult entertainment businesses. RWH61761 - 6 - ORDINANCE NO. 769 2. "Nudity or State of Nudity" means: (a) the appearance or display of human bare buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast; or (b) a state of dress which fails to opaquely and fully cover a human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast. 3. "Semi -Nude" means a state of dress in which clothing covers no more than the genitals, pubic, region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices. 4. "Specified Anatomical Areas" as used herein means and 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. 5. "Specified sexual activities" includes the follow- ing: a. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestial- ity, direct physical stimulation of unclothed genitals, flagellation or torture in the context of sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or b. Clearly depicted human genitals in state of sexual stimulation, arousal or tumescence; or C. Use of human or animal masturbation, sodomy, oral copulation, coitus, ejaculation; or d. Fondling or touching of nude human genitals, pubic region, buttocks or female breasts; or e. Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or f . Erotic or lewd touching, fondling or other con- tact with an animal by a human being; or g. Human excretion, urination, menstruation, vagi- nal or anal irrigation. RWH61761 - 7 - ORDINANCE NO, 769 SECTION 3. Any violation of this ordinance shall be a misdemeanor punishable as set forth in the Municipal Code. SECTION 4. The City Council of the City of Palm Desert hereby declares that should any section, paragraph, sentence, phrase, term or word of this ordinance, hereby adopted, be declared for any reason to be invalid, it is the intent of the City Council that it would have adopted all other portions of this ordinance irrespective of any such portion declared invalid. PASSED, APPROVED AND ADOPTED this 12th day of January 11 1995, by the City Council of the City of Palm Desert, California, by the following vote, to wit: AYES: BENSON, KELLY, SNYDER, CRITES NOES: NONE ABSENT: NONE ABSTAIN: NONE i BUFORD MITES, Mayor City of Palm Desert, California ATTEST: SHEILA G LLIGAN, ty iCle Q RWH61761 - 8 -