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HomeMy WebLinkAbout580URGENCY ORDINANCE NO. 580 AN URGENCY INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF IRWINDALE, CALIFORNIA, PROHIBITING THE GRANTING, BY THE CITY COUNCIL OR PLANNING DEPARTMENT, OF BUSINESS LICENSES OR OCCUPANCY PERMITS FOR THE ESTABLISHMENT AND OPERATION OF ADULT BUSINESES AND MASSAGE ESTABLISHMENTS PENDING COMPLETION OF THE AN AMENDMENT TO THE ZONING CODE AND DECLARING THE URGENCY THEREOF WHEREAS, consistent with State law, the City Council of the City of Irwindale ("City Council") has previously adopted a General Plan and a zoning code; and WHEREAS, the City Council has previously found and determined that the City of Irwindale's ("City") General Plan, which was prepared in 1973, is outdated, out of compliance with State law and in need of updating; and WHEREAS, City's staff has been diligently preparing and processing an update of the City's General Plan and anticipates approval of the updated General Plan within the next several months; and WHEREAS, once the updated General Plan has been adopted, City staff will amend the zoning code to be consistent with the General Plan and to be in compliance with current State laws; and WHEREAS, the City's zoning code does not currently include adequate standards relating to the establishment and operation of adult businesses and massage establishments, which are defined below; and WHEREAS, the City Council finds and determines that the proliferation of adult businesses and massage establishments, as defined herein, pose a threat to residents of the City due to the harmful secondary effects of such businesses; and WHEREAS, courts have upheld the rights of a city to protect its citizens from the secondary effects of adult businesses (City of Renton v. Playtime Theaters, Inc. (1986) 475 U.S. 41; City of National City v. Wiener (1992) 3 Cal.4t' 832); and WHEREAS, the City Council believes that there is a real and credible threat of new adult businesses and massage establishments opening in the City and is concerned about the possible impacts that could reasonably result from the imminent increase in the number of adult businesses and massage establishments within City limits; and WHEREAS, the City Council desires to ensure that all business licenses and occupancy permits relating to adult businesses and massage establishments within the Ordinance No. 580 Page 1 1005-005/29938.x3 City are being undertaken in a manner that reflects the current laws and are consistent with the City's General Plan; and e^) WHEREAS, the City Council believes that this ordinance will facilitate the control and regulation of adult businesses and massage establishments within the City without unconstitutionally infringing on a person's First Amendment rights; and WHEREAS, in an effort to develop comprehensive and appropriate revisions to the City's zoning code relating to adult businesses and massage establishments and to ensure that the zoning code and that all zoning -related decisions within the City are consistent with the updated General Plan, the City Council directs staff to update the City's zoning code, including, but not limited to: (a) the preparation of standards relating to adult businesses and massage establishments, (b) the incorporation of conditions of approval relative to adult businesses and massage establishments, and (c) an overall amendment of the zoning code relative to adult businesses and massage establishments in a manner that complies with the First Amendment of the Constitution of the United States; and WHEREAS, in order to insure sufficient time for staff to undertake the comprehensive planning required to revise the City's zoning ordinance to be consistent with the updated General Plan and all applicable State laws relative to adult businesses and massage establishments, it will be necessary to temporarily suspend the granting of business licenses and occupancy permits relating to adult businesses and massage establishments pending approval of the updated General Plan and the subsequent completion of revisions to the City's zoning ordinance; and WHEREAS, other communities which have studied this issue have concluded that an over -concentration of adult uses can have deleterious effects on surrounding property based upon the exterior design and treatment of the facilities, signage, property maintenance, parking and similar land use issues, and can attract a clientele which brings crime, disorderly behavior and similar conduct to the property and its environs and such studies have been conducted by other cities such as Garden Grove, Whittier and Los Angeles; and WHEREAS, based on such studies, other communities have developed dispersal ordinances providing for the location of such uses in appropriate districts but requiring separation from similar uses and from schools, youth facilities, recreational areas and similar development, and the City needs to determine whether such standards are appropriate in the City; and WHEREAS, pursuant to the authority and criteria contained in the California Environmental Quality Act ("CEQA") and the CEQA Guidelines, the City of Irwindale, as the lead agency, has analyzed the project and determined that there is no possibility that the adoption of this ordinance may have a significant effect on the environment and therefore the adoption of this ordinance is exempt from the requirements of CEQA pursuant to the provisions of CEQA Guidelines Section 15061(b)(3); and Ordinance No. 580 Page 2 WHEREAS, the City Council believes that this ordinance is critical for the immediate protection of City's residents, for the preservation of public welfare, and will help achieve the foregoing objectives; and WHEREAS, Government Code Sections 65858, 36934 and 36937 expressly authorize the City Council to adopt an urgency ordinance prohibiting any uses which may be in conflict with the contemplated zoning ordinance which the legislative body of the City or the Planning Department is considering or studying or intends to study within a reasonable time. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Recitals Incorporated. The City Council of the City of Irwindale finds that the above recitals are true and correct and are incorporated herein by this reference. SECTION 2. Interim Ordinance. From and after the date of this urgency ordinance and for the term provided herein, no agency of the City shall accept for processing or process any application or issue any approval, license or permit to any person or entity to develop, construct or operate any project or business for adult business purposes as defined herein, except as otherwise provided. SECTION 3. Definitions. (a) "Adult business means any business which is, at any time or times, conducted exclusively for the patronage of adults, from the premises of which minors are specifically excluded by law or by the owner or person in possession of the premises. This definition shall exclude any use pre-empted by state law or licensed by the state. An adult business is also defined as any business dispensing sexually oriented materials or viewings for pay, as a predominant, principal, substantial, significant or even occasional part of the business, an adult bookstore, and an adult cabaret. (b) "Massage establishment" means any establishment having a fixed place of business where any person, firm, association, partnership or corporation engages in, conducts or carries on, or permits to be engaged in, conducted or carried on, any business of giving massages, baths, administration of fomentation, mechanical, electric or magnetic treatments, alcohol rubs or any other type of system for treatment or manipulation of the human body with or without any character of bath, such as Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, sponge, mineral, fomentation, or any other type of bath, and the City Council desires to amend this deficiency with the forthcoming revisions to the zoning code. (c) "Adult bookstore" means any establishment, which as a regular and substantial course of conduct, displays and/or distributes sexually oriented material Ordinance No. 580 Page 3 1005-005/29938.0 and/or merchandise, books, periodicals, magazines, photographs, drawings, sculptures, motion pictures, videos, slides, films, or other written, oral or visual representations which are distinguished or characterized by an emphasis on a matter depicting, describing or relating to specified sexual activities or specified anatomical parts. (See "Adult oriented business" for definition of regular and substantial portion of its business.) (d) "Adult cabaret' means a nightclub, bar, lounge, restaurant or similar establishment or concern which features as a regular and substantial course of conduct, any type of live entertainment, striptease, topless or nude dancing, films, motion pictures, videos, slides, other photographic reproductions, or other oral, written or visual representations which are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts. (e) "Adult oriented business" means any business establishment or concern which as a regular and substantial course of conduct performs as an adult bookstore, adult theater, adult motion picture arcade, adult cabaret, stripper, adult model studio or adult hotel/motel; any business establishment or concern which as a regular and substantial course of conduct sells or distributes sexually oriented merchandise or sexually oriented material; or any other business establishment or concern which as a regular and substantial course of conduct offers to its patrons products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts. "Adult oriented business" does not include those uses or activities the rani datinn of which is preempted by state law. "Adult oriented business" shall also include any business establishment or concern which, as a regular and substantial course of conduct provides or allows performers, models, actors, actresses or employees to appear in any place in attire which does not opaquely cover specified anatomical parts. For the purposes of this section, a business establishment or concern has established the provision of products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts as a regular and substantial course of conduct when one or more of the following conditions exist: (1) The area devoted to sexually oriented merchandise and/or sexually oriented material exceeds more than ten percent, or two hundred fifty square feet, whichever is less, of the total display or floor space area open to the public; (2) The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on specified sexual activity or specified anatomical parts at least six times in any month in any given year; (3) The business establishment or concern obtains a significant or substantial portion of its revenues from the sale, rental or lease of entertainment, material or merchandise characterized by an emphasis on matter depicting, Ordinance No. 580 Page 4 describing, or relating to specified sexual activities or specified anatomical parts or advertises the availability of the same; or (4) The regular and substantial course of conduct of the business consists of or involves the sale, trade, display or presentation of services, products or entertainment which are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts. (f) "Sexually oriented material' means any element of sexually oriented merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture, film, video, or other written, oral or visual representation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical parts. (g) "Sexually oriented merchandise" means sexually oriented implements and paraphernalia, such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity. (h) "Specified anatomical parts" means: (1) Less than completely and opaquely covered human genitals; pubic region; buttocks; or female breast below a point immediately above the top of the areola; or (2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered. (i) "Specified sexual activities" means: (1) Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral/anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory function in the context of a sexual relationship, any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerastia; (2) Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; Ordinance No. 580 Page 5 1005-005/29938.v3 (3) Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; 110) (4) Fondling or touching of nude human genitals, pubic region, buttocks or female breast; (5) Masochism, erotic or sexually oriented torture, beating or the infliction of pain; (6) Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; (7) Human excretion, urination, menstruation, vaginal or anal irrigation; (8) Striptease, stripping, topless or nude dancing or the removal of clothing to the point where specified anatomical parts are not opaquely covered. SECTION 4. Findings. In adopting this interim urgency ordinance, the City Council finds and determines that, in light of the studies conducted by other cities, including, but not limited to, Garden Grove, Whittier and Los Angeles, each of the recitals contained in this ordinance are true and correct, and that the adoption of this interim urgency ordinance is necessary to protect the public safety, health and welfare, as those terms are defined in Government Code Section 65858(a), in at least the following respects: (a) Were the City Council or the Planning Department to grant a business license or occupancy permit, or the like, relating to adult businesses and massage establishments during the pendency of General Plan update and the studies necessary to revise the City's zoning ordinance relating to adult businesses and massage establishments, such approvals could undermine the orderly development of property within the City, resulting in a reduction of the quality, caliber and aesthetics of the development of such property; and (b) Were the City Council or the Planning Department to grant a business license or occupancy permit, or the like, relating to adult businesses and massage establishments during the pendency of the General Plan update and the studies necessary to revise the City's zoning ordinance relating to adult businesses and massage establishments, such approvals could undermine the orderly development of property within the City, resulting in the inability of the City to assure that property is developed to its highest and best use as allowed by law; and (c) Were the City Council or the Planning Department to grant a business license or occupancy permit, or the like, relating to adult businesses and massage establishments during the pendency of the General Plan update and the studies necessary to revise the City's zoning 110) Ordinance No. 580 Page 6 ordinance relating to adult businesses and massage establishments, such approvals could authorize development which is in violation of State laws. SECTION 5. Term. This Urgency Ordinance shall be of no further force or effect forty-five (45) days from and after the date of its adoption, unless the same is extended pursuant to the authority conferred upon the City Council by Government Code Section 65858(a). Not later than ten (10) days prior to the expiration of this Urgency Ordinance, the City Council shall issue a written report describing the measures taken to alleviate the condition which has led to the adoption of this Urgency Interim Ordinance. SECTION 6. Severability. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each and every section, subsection, sentence, clause and phrase thereof not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 7. Effective Date. This Urgency Ordinance is enacted pursuant to the authority conferred upon the City Council of the City of Irwindale by Government Code Section 65858, 36934 and 36937, and shall be in full force and effect immediately upon its adoption by a four-fifths (415) vote of the City Council as if and to the same extent that such ordinance had been adopted pursuant to each of the individual sections set forth hereinabove. SECTION 8. Certification. The City Clerk shall certify as to the passage and adoption of this ordinance and shall cause the same to be posted at the designated locations in the City of Irwindale. PASSED, APPROVED AND ADOPTED THIS 2nd DAY OF MARCH 2004. A. Breceda, Mayor EST: L' da J. Ki o, C C eputy City Clerk Ordinance No. 580 Page 7 1005-005/29938.x3 STATE OF CALIFORNIA } COUNTY OF LOS ANGELES } ss. CITY OF IRWINDALE } I, Linda J. Kimbro, Deputy City Clerk of the City of Irwindale, do hereby certify that the foregoing Ordinance No. 580 was duly and regularly passed and adopted by the City Council of the City of Irwindale at a regular meeting held on the 2nd day of March 2004, by the following vote: AYES: Councilmembers: Miranda, Tapia, Garcia, Ramirez, Mayor Breceda NOES: Councilmembers: None ABSENT: Councilmembers: None ABSTAIN: Councilmembers: None Litida J. Kimbr , MC Deputy City Clerk APPROVED AS TO FORM: Fred Galante, City Attorney AFFIDAVIT OF POSTING I, Linda J. Kimbro, Deputy City Clerk, certify that I caused a copy of Ordinance No. 580, adopted by the City Council of the City of jin dale atifsregular meeting heldMamh 2, 2004, to be posted at the City Hall, Library, and Post Office on Mamh 3, 2004. J. Kimbro, MDated: March 3, 2004 ty City Clerk Ordinance No. 580 Page 8