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of Irwindale's ("City") General Plan, which was prepared in 1973, is outdated, out of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
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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
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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
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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,
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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;
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(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
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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
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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
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