HomeMy WebLinkAboutItem 3 - Staff Report - Title 19 - SOBCHULA VISTA
PLANNING
COMMISSION
AGENDA STATEMENT
Item• 3
Meeting Date: Mqy 14, 2014
ITEM TITLE: Public Hearing: PCM 14 -06 Planning Commission recommendation to
City Council to approve an ordinance of the City of Chula Vista amending
Title 19 of the Chula Vista Municipal Code regulating planning and
zoning concerning sexually oriented businesses
SUBMITTED BY: Kelly Broughton, Development Services Director
Glen R. Googins, City Attorney
REVIEWED BY: Kelly Broughton, Development Services Director
Glen R. Googins, City Attorney
INTRODUCTION
The existing provisions of the Chula Vista Municipal Code (Municipal Code) pertaining to the
locational regulations of sexually oriented businesses are in need of updating and should be
enhanced to reduce and/or preclude undesirable secondary effects. Accordingly, staff and its
legal consultant have completed a thorough review of the various specific plans and various
zoning restrictions at play in the City as to sexually oriented businesses. As a result of this
research and review process, the proposed ordinance provides the requisite balance between the
City's interests in protecting the public safety, health, and welfare and the constitutional
protection afforded to sexually oriented businesses. Moreover, the proposed ordinance provides
the evidentiary and factual foundation required to reasonably conclude that sexually oriented
business can create potentially serious and deleterious secondary effects in the Chula Vista
community, and therefore, the City's sexually oriented business regulations should be updated.
This ordinance is constitutionally sound as it provides a reasonable range of potential sites.
ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the proposed activity for compliance with the
California Environmental Quality Act (CEQA) and has determined that the proposed activity is
not a "Project" as defined under section 15378 of the State CEQA Guidelines because the
adoption of this ordinance, will not result in a physical change to the environment; therefore,
pursuant to Section 15060(c)(3) of the State CEQA Guidelines the proposed activity is not
subject to CEQA. Notwithstanding the forgoing, the Development Services Director has further
determined that there is also no possibility that the proposed activity will have a significant effect
on the environment; therefore, pursuant to Section 15061(b)(3) of the State CEQA Guidelines
the activity is exempt from the provisions of CEQA.
Item 3
May 14, 2014
Page 12
RECOMMENDATION
That Planning Commission recommend to City Council to take action to approve the ordinance
presented amending Title 19 of the Chula Vista Municipal Code to update and enhance the
locational and zoning provisions for regulation of sexually oriented businesses based on the
findings set forth therein.
DISCUSSION
The City of Chula Vista initially adopted zoning and locational regulations found in Title 19 of
the Municipal Code in 1980. Since then, there have been minor modifications to the Title and
the City has adopted a number of Specific Plan amendments governing zoning within specified
areas in Chula Vista. The proposed Ordinance is a comprehensive review of the City's existing
regulations for sexually oriented uses /adult uses and addresses the locational and zoning
provisions. A copy of the proposed Ordinance is attached as Attachment 1. The purpose and
intent of the proposed amendments to the Municipal Code are to:
(1) mitigate and reduce the judicially recognized potential adverse secondary effects of
sexually oriented businesses including, but not limited to, crime, the prevention of blight in
neighborhoods, and the increased spread of sexually transmitted diseases;
(2) protect quality of life and neighborhoods in the City, the City's retail and commercial
trade, and local property values, and minimize the potential for nuisances related to the operation
of sexually oriented businesses;
(3) protect the peace, welfare and privacy of persons who own; operate and /or patronize
sexually oriented businesses; and
(4) minimize the potential for nuisance related to the operation of sexually oriented
businesses.
A. Legal Basis /Constitutional Constraints.
Sexually oriented businesses, such as adult bookstores, adult videos stores, and adult cabarets,
engage in activities recognized as protected speech under the First Amendment of the United
States Constitution. For example, nude dancing has been found by the U.S. Supreme Court to be
on the outer margins of protected activity. (See Barnes v. Glen Theatre, Inc., 501 U.S. 560
(1991)). As providers of protected First Amendment speech, the courts have uniformly ruled that
these types of sexually oriented businesses cannot be prohibited. Sexually oriented businesses
can, however, be regulated. Traditional constitutional analysis divides the range of speech
regulations into two main categories: (1) content based; and (2) content neutral (i.e., regulations
not based on content but rather imposing reasonable time, place, and manner restrictions).
Content -based regulation is specifically aimed at the speech's content, and any such content
based regulation carries with it a very high burden to find such legally adequate mandating that
the public entity show it has a compelling interest in its regulation. In contrast, content neutral
regulations are aimed at protecting governmental interests unrelated to the content of speech,
such as traffic or noise regulation applied to all types of commercial uses for purposes of
furthering the public health, safety and welfare.
Item 3
May 14, 2014
Page 13
The United States Supreme Court in the City of Renton v. Playtime Theaters, Inc., 475 U.S. 41
(1986), addressing Renton, Washington's adult use ordinance, held that whether a time, place,
and manner regulation is content neutral is to be determined by looking at the regulation's
purposes, i.e. is the purpose the reduction of secondary effects versus the suppression of the
offensive or unpopular speech. A city may adopt regulations to curb the deleterious secondary
effects of sexually oriented businesses, but suppression of the speech is impermissible. A
content neutral time, place, and manner regulation must serve a substantial government interest
and be reasonably tailored to preclude secondary effects. Courts have also recognized that a
city's interest in protecting the quality of life and finding creative solutions to address sexually
oriented businesses' deleterious secondary effects must be accorded the highest respect. City of
Los Angeles v. Alameda Books, 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002).
The proposed ordinance is content neutral under the Renton standard because it is designed to
further the City's purposes and goals in limiting and preventing the deleterious secondary effects
associated with sexually oriented businesses. The extensive findings set forth in the proposed
ordinance fully support the regulations therein. In SDJ. Inc. v. City of Houston, 837 F.2d 1274
(5th Cir. 1988), cent. denied 480 U.S. (1989), the court remarked on the importance of findings:
"Insisting on findings reduces the risk that a purported effort to regulate effect is a mask for
regulation of content. That is, evidence of a legitimate purpose is supported by proof that
secondary effects actually exist and are the result of the business subject to the regulation...."
The supporting materials provided as exhibits to this staff report, as well as input from City staff,
the city attorney, and the city's special counsel, contributed to crafting the recommended
requirements found in the proposed ordinance which are a constitutional, narrowly tailored
means of controlling potential secondary effects of sexually oriented businesses. On file at the
City Clerk's office is the set of the exhibits in support of this ordinance. A list of those exhibits
is attached to this staff report as Attachment 2. Included among the exhibits are the cases
referred to in the ordinance, the studies of other cities relating to the secondary effects of
sexually oriented, and other supporting documentation. We have also included a number of
materials relating to testimony from current and former dancers and other employees of sexually
oriented businesses or persons affiliated with the sexually oriented business industry, which
support the need for this ordinance. A summary of a portion of these studies is attached to this
staff report as Attachment 3. In addition, Chula Vista Chief of Police David Bejarano has
provided testimony on the secondary impacts related to sexually oriented businesses. Chief
Bejarano's testimony is provided as Attachment 4. Chief Bejarano, during his tenure with the
San Diego Police Department, served as a detective investigating unlawful activities in sexually
oriented businesses, served as the Vice Commander and was responsible for detectives
conducting such investigations, and, as Chief of Police, was responsible for the licensing of
sexually oriented businesses within the City of San Diego. A copy of his curriculum vitae
( "CV ") is attached to this staff report as Attachment 5.
These zoning and locational criteria are a legitimate and reasonable means of regulating sexually
oriented businesses. There are two generally accepted approaches to regulating the location of
sexually oriented businesses — (1) the "dispersal" method and (2) the "concentration" method.
With the dispersal method adult uses are buffered a set distance from various sensitive land uses
(i.e., parks, schools, residential zones) and from other adult uses. With the concentration method
adult uses are all located in one area such as what is known as the "combat zone" in Boston. The
City has selected the dispersal method.
Item 3
May 14, 2014
Page 14
D. Zoning and Locational Regulations.
Potential Sites; Reasonable Range of Alternative Sites
There is no "mathematical formula" or set "litmus test" established by the courts to determine
the number of sites that must be available for sexually oriented businesses. The issue is
examined on a case by case basis, looking at the particular land use and demographic
characteristics of the community.
Chula Vista is a community with a population estimated at, 243,916 (as of 2010, U. S.
Department of Commerce). The general plan and zoning map designate all parcels of land
within the City for some type of use — such as residential, industrial, or commercial. There are 5
general land use categories identified in Chula Vista General Plan including residential,
commercial, industrial, mixed use, and public /quasi - public and open space. Based on land use
categories set forth in the City's General Plan, the composition of land uses in the City is as
follows:
a. Residential* 32%
b. Commercial ** 2%
C. Industrial 4%
d. Public, Quasi- Public, Open Space, Streets, Freeways, and Utilities Rights of Way
61%
e. Special Planning Areas 1%
* Includes Mixed Use Residential and Transit Focus Areas
* * Includes Mixed Use Commercial
As the above table illustrates, only 6% of land within Chula Vista is available for potential
commercial or industrial land use.
The Ninth Circuit in Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993)
set out established criteria for determining whether sites are actually available in the "relevant
commercial market" by examining if:
• There is a genuine possibility that the site is potentially available. In other words,
is it reasonable "to believe that [the site] would ever become available to any
commercial enterprise ?"
• If the sites are in manufacturing zones, are they reasonably accessible to the
general public.
• If the sites are in manufacturing zones, do they have proper infrastructure such as
sidewalks, road and lighting.
• If the sites are in manufacturing zones, can they serve a generic commercial
purpose such as retail or places of assembly.
• The sites are commercially zoned.
Item 3
May 14, 2014
Page (5
The court in Topanga Press rejected Los Angeles' attempt to include sites that were clearly
unavailable such as areas under water, landfills and airport sites. Other examples of unavailable
sites include lands used for large warehouses, lands that are part of a sewage treatment facility,
lands that are part of an existing hospital, and large oil refineries. To avoid the pitfalls of
Topanga Press, the City should exclude any sites that are outside of the "relevant commercial
market."
The Planning Staff has reviewed these various Topanga criteria and determined that all
commercially zoned sites are per se available per Topanga and all industrially zoned sites meet
all of the Topanga criteria.
Due to the physical and land use constraints of Chula Vista, the proposed Ordinance offers a 500
foot separation requirement between sexually oriented facilities and certain sensitive users (i.e.,
schools, parks and residential zones). After touring the entire City and reviewing the various
available zones and potential distance from sensitive users, staff further recommends that
sexually oriented businesses be allowed only in the C -T (Thoroughfare Commercial) zone or in
the noted zones identified in the Bayfront Specific Plan, the Eastlake I, Eastlake Business Center
II and Eastlake II Sectional Planning Areas (SPA) as allowing such businesses.
In assessing the potentially available sites for sexually oriented businesses, we have determined
that there are a total of 200 potential sites. Of those 200 sites, 88 are designated with a
commercial land use, while the balance, 112 sites, are designated with an industrial land use.
Moreover, the locational requirements contained in the proposed ordinance do not unreasonably
restrict the establishment or operation of constitutionally protected sexually oriented businesses
in Chula Vista, and a sufficient and reasonable number of alternative locations for sexually
oriented businesses are provided by the City of Chula Vista. The United States Supreme Court
decision in City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct. 925 (1986) requires
that the City provide adult businesses a reasonable opportunity to open and operate. The Ninth
Circuit decisions in Topanga Press, Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000),
cent. denied 531 U.S. 1191 (2001), and Isbell v. City of San Diego, 258 F.3d 1108 (9th Cir. 2001)
with respect to availability of sites for sexually oriented businesses support a finding that there
are sufficient sites available for sexually oriented businesses within the City.
Thus, under the locational and zoning provisions at play in Chula Vista, the criteria set forth
above provide a reasonable range of available sites.
DECISION -MAKER CONFLICTS
Staff has reviewed the decision contemplated by this action and has determined that it is not site -
specific and consequently the 500 -foot rule found in California Code of Regulations Section
18704.2(a)(1) is not applicable to this decision. Staff is not independently aware, nor has staff
been informed by any Planning Commissioner, of any other fact that may constitute a basis for a
decision -maker conflict of interest in this matter.
FISCAL IMPACT
There is no current year or ongoing fiscal impact.
Item 3
May 14, 2014
Page 16
Attachments
1. Ordinance
2. List of Exhibits (On File in the City Clerk's Office)
3. Summary of Studies
4. Chief of Police David Bejarano's Testimony
5. Chief of Police David Bejarano's CV
2270439.1
RESOLUTION NO. PCM 14 -06
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING
COMMISSION RECOMMENDING THAT THE CITY
COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA
AMEND TITLE 19 OF THE CHULA VISTA MUNICIPAL
CODE REGULATING PLANNING AND ZONING
CONCERNING SEXUALLY ORIENTED BUSINESSES
WHEREAS, the City of Chula Vista has certain permitting provisions found in
Title 19 for sexually oriented businesses that are in need of updating and refinement. The
Planning Commission takes legislative notice of the full complement of supporting
evidence as to the secondary effects of sexually oriented businesses. Accordingly, the
Planning Commission makes the findings and enactments in the City Council ordinance
accompanying this subject resolution and recommends the same to the City Council; and
WHEREAS, the hearing was held at the time and place as advertised, namely
6:00 p.m., May 14, 2014, in the Council Chambers, 276 Fourth Avenue, before the
Planning Commission and said hearing was thereafter closed; and
WHEREAS, the Planning Commission, as set forth in the record of its
proceedings therein, recommends that the City Council amend Title 19 of the Chula Vista
Municipal Code concerning sexually oriented businesses.
NOW, THEREFORE, BE IT RESOLVED THAT THE PLANNING
COMMISSION hereby finds and resolves as follows:
That the Planning Commission has reviewed the proposed activity for compliance
with the California Environmental Quality Act (CEQA) and has determined that the
proposed activity is not a "Project" as defined under section 15378 of the State CEQA
Guidelines because the adoption of this ordinance, will not result in a physical change to
the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA
Guidelines the proposed activity is not subject to CEQA. Notwithstanding the forgoing,
the Planning Commission has further determined that there is also no possibility that the
proposed activity will have a significant effect on the environment; therefore, pursuant to
Section 15061(b)(3) of the State CEQA Guidelines the activity is exempt from the
provisions of CEQA.
BE IT FURTHER RESOLVED, that the Planning Commission hereby
recommends that the City Council of the City of Chula Vista, California amend Title 19
of the Chula Vista Municipal Code regulating planning and zoning concerning sexually
oriented businesses.
BE IT FURTHER RESOLVED, that a copy of this resolution be transmitted to
the City Council.
Resolution PCM 14 -06
May 14, 2014
Page -2-
Presented by:
Kelly Broughton, FASLA
Director of Development Services
Approved as to form by:
Glen R. Googins
City Attorney
PASSED AND APPROVED BY THE PLANNING COMMISSION OF THE
CITY OF CHULA VISTA, CALIFORNIA, this 14 day of May, 2014, by the following
vote, to -wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
Lisa Moctezuma, Chair
ATTEST:
Patricia Laughlin, Board Secretary
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA, CALIFORNIA AMENDING TITLE 19 OF
THE CHULA VISTA MUNICIPAL CODE REGULATING
PLANNING AND ZONING
WHEREAS, the City of Chula Vista has certain permitting provisions found in Title 19
for sexually oriented businesses that are in need of updating and refinement. The City Council
takes legislative notice of the full complement of supporting evidence as to the secondary effects
of sexually oriented businesses. Accordingly, the City makes the following findings and
enactments.
NOW THEREFORE the City Council of the City of Chula Vista does hereby ordain as
follows:
SECTION 1. FINDINGS.
A. The City of Chula Vista has certain provisions found in Title 19 relating to
planning and zoning for sexually oriented businesses that are in need of refinement. The City
Council finds that it is necessary and appropriate to amend Title 19 to add, refine and update the
provisions relating to planning and zoning standards for adult businesses operating within Chula
Vista. The public health, safety and welfare of the City and its residents require the enactment of
this Ordinance in order to: (1) mitigate and reduce the judicially recognized potential adverse
secondary effects of sexually oriented businesses, including but not limited to crime, the
prevention of blight in neighborhoods and the increased threat of the spread of sexually
transmitted diseases; (2) protect the quality of life and neighborhoods in the City, the City's retail
and commercial trade, and local property values, and minimize the potential for nuisances related
to the operation of sexually oriented businesses; and (3) protect the peace, welfare and privacy of
persons who own, operate and/or patronize sexually oriented businesses.
B. The City Council finds that the revisions to the City's Municipal Code
implemented by this Ordinance are necessary in order to respond to recent developments within
the regulation of adult uses and case law and in order to preserve the City from the potential
adverse secondary effects of sexually oriented businesses, including crime, the protection of the
City's retail trade, maintenance of property values, protecting and preserving the quality of the
City's neighborhoods and the City's commercial districts, and the protection of the City's quality
of life, based on the referenced studies and the findings set forth herein. Specifically, the
revisions and amendments to Municipal Code Title 19 included in this Ordinance are essential
and necessary to ensure the orderly land use regulation as to sexually oriented businesses uses
within the City and thereby protect the public peace, safety and general welfare in the City of
Chula Vista.
C. On May 20, 2014, the City Council held a public meeting during which it
considered the adoption of this Ordinance.
ATTACHMENT 1
Ordinance
Page 2
D. The City Council, in adopting this Ordinance, takes legislative notice of the
existence and content of the following studies concerning the adverse secondary side effects of
sexually oriented businesses in other cities: Austin, Texas (1986); Indianapolis, Indiana (1984);
Garden Grove, California (1991); Seattle, Washington (1989); Houston, Texas (1997); Phoenix,
Arizona (1979); Tucson, Arizona (1990); Chattanooga, Tennessee (2003); Los Angeles,
California (1977); Whittier, California (1978); Spokane, Washington (2001); St. Cloud,
Minnesota (1994); Littleton, Colorado (2004); Oklahoma City, Oklahoma (1986); Dallas, Texas
(1997 and 2007); Ft. Worth, Texas (2004); Kennedale, Texas (2005); Greensboro, North
Carolina (2003); Amarillo, Texas (1977); Cleveland, Ohio (1977); Newport News, Virginia
(1996); Jackson County, Missouri (2008); Louisville, Kentucky (2004); New York, New York
Times Square (1994); Beaumont, Texas (1982); the Report of the Attorney General's Working
Group On The Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota);
A Methodological Critique of the Linz -Paul Report: A Report to the San Diego City Attorney's
Office (2003); Summaries of Key Reports Concerning the Negative Secondary Effects of
Sexually Oriented Businesses, by Louis Comus III (2001). The City Council finds that these
studies are relevant to the problems addressed by the City in enacting this Ordinance to regulate
the adverse secondary side effects of sexually oriented businesses, and more specifically finds
that these studies provide convincing evidence that:
1. Sexually oriented businesses, as a category of commercial uses, are
associated with a wide variety of adverse secondary effects including, but not limited to, personal
and property crimes, prostitution, potential spread of disease, lewdness, public indecency,
obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban
blight, litter, traffic, noise, and sexual assault and exploitation.
2. The studies from other cities establish by convincing evidence that
sexually oriented businesses that are not regulated with operating standards often have a
deleterious effect on nearby businesses and residential areas, causing, among other adverse
secondary effects, an increase in crime and a decrease in property values. Regulations for
sexually oriented businesses should be developed to prevent deterioration and/or degradation of
the vitality of the community before the problem exists, rather than waiting for problems to be
created.
E. In developing this Ordinance, the City Council is mindful of legal principles
relating to regulation of sexually oriented businesses, and the City Council does not intend to
suppress or infringe upon any expressive activities protected by the First Amendment of the
United States and California Constitutions but instead desires to enact reasonable time, place,
and manner regulations that address the adverse secondary effects of sexually oriented
businesses. The City Council takes legislative notice of the:
1. Decisions of the United States Supreme Court regarding local regulation
of sexually oriented businesses including, but not limited to: City of Littleton v. Z.J. Gifts D -4,
L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002);
City of Erie v. Pap's A.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986); Young v. American Mini Theatres, 427 U.S. 50 (1976); Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991); California v. LaRue, 409 U.S. 109 (1972); N.Y. State Liquor Authority
Ordinance
Page 3
v. Bellanca, 452 U.S. 714 (1981); Sewell v. Georgia, 435 U.S. 982 (1978); FW /PBS, Inc. v. City
of Dallas, 493 U.S. 215 (1990); City of Dallas v. Stanglin, 490 U.S. 19 (1989).
2. Decisions of the Ninth Circuit Court of Appeals addressing sexually
oriented businesses including but not limited to: Alameda Books, Inc. v. City of Los Angeles, 631
F.3d 1031 (9th Cir. 2011); Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th
Cir. 2007); Tollis, Inc. v. County of San Diego, 505 F.3d 935 (9th Cir. 2007); Gammoh v. City of
La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402 F.3d 875, cent. denied 126 S.Ct. 274;
World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Dream
Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004); Talk of the Town v. Department of
Finance and Business Services, 343 F.3d 1063 (9th Cir. 2003); Deja Vu- Everett - Federal Way,
Inc. v. City of Federal Way, 46 Fed.Appx. 409 (9th Cir. 2002); Clark v. City of Lakewood, 259
F.3d 996 (9th Cir. 2001); Isbell v. City of San Diego, 258 F.3d 1108 (9th Cir. 2001); Isbell v. City
of San Diego, 450 F.Supp.2d 1143 (S.D. Cal. 2006); Diamond v. City of Taft, 215 F.3d 1052 (9th
Cir. 2000), cert. denied 531 U.S. 1072 (2001); L.J. Concepts, Inc. v. City of Phoenix, 215 F.3d
1333 (9th Cir. 2000); Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000), cent. denied 121
S.Ct. 1189 (2001); Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000), cent. denied 531
U.S. 1104 (2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); North
v. City of Gilroy, 78 F.3d 594 (9th Cir. 1996); Spokane Arcade, Inc. v. City of Spokane, 75 F.3d
663 (9th Cir. 1996); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993),
cent. denied 511 U.S. 1030 (1994); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986);
and Lydo Ent. v. Las Vegas, 745 F.2d 1211 (9th Cir. 1984).
3. Decisions of the State of California addressing sexually oriented
businesses including: Madain v. City of Stanton, 185 Cal.AppAth 1277 (2010); Krontz v. City of
San Diego, 136 Cal.App.4th 1126 (2006); Lacy Street Hospitality Service, Inc. v. City of Los
Angeles, 125 Cal.App.4th 526 (2004); Department of Alcoholic Beverage Control v. Alcoholic
Beverage Control Appeals Board and Renee Vicary, Real Party in Interest, 99 Cal.App.4th 880
(2002); Tily B., Inc. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); Sundance Saloon, Inc. v.
City of San Diego, 213 Cal.App.3d 807 (1989); 7978 Corporation v. Pitchess, 41 Cal.App.3d 42
(1974); Deluxe Theater & Bookstore, Inc. v. City of San Diego, 175 Cal.App.3d 980 (1985);
E. WA.P., Inc. v. City of Los Angeles, 56 Cal.App.4th 310 (1997); City of Vallejo v. Adult Books,
167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); City of National City v.
Wiener, 3 Cal.4th 832 (1992), cert. denied 510 U.S. 824; and People v. Superior Court (Lucero),
49 Cal.3d 14 (1989).
F. The negative secondary effects from sexually oriented businesses constitutes a
harm which the City has a substantial government interest in preventing and /or abating. This
substantial government interest in preventing secondary effects, which is the City's rationale for
this Ordinance, exists independent of any comparative analysis between sexually oriented and
non - sexually oriented businesses. Additionally, the City's interest in regulating sexually
oriented businesses extends to preventing future secondary effects of either current or future
sexually oriented businesses that may locate in the City. The City finds that the cases and
documentation relied on in this Ordinance are reasonably believed to be relevant to said
secondary effects. The City again refers to the record of cases and documentation relating to
secondary effects associated with sexually oriented businesses which remain on file in
Ordinance
Page 4
connection with Ordinance Nos. 3239 and 3241 which were adopted by the City in November
2012.
G. Locational criteria are a legitimate and reasonable means of ensuring that adult
businesses are conducted in a manner so as to minimize their adverse secondary effects and
thereby protect the health, safety, and welfare of the City's residents, protect citizens from
increased crime, preserve the quality of life, preserve property values and the character of
surrounding neighborhoods and businesses, and deter the spread of urban blight. The locational
requirements contained in this Ordinance do not unreasonably restrict the establishment or
operation of constitutionally protected adult businesses in Chula Vista and a sufficient and
reasonable number of alternative locations for adult businesses are provided by this Ordinance.
The City Council takes legislative notice of the United States Supreme Court decision in Renton
that requires that adult businesses be provided a reasonable opportunity to open and operate. The
City Council also takes legislative notice of the Ninth Circuit's decisions in Topanga Press, Lim
and Isbell with respect to availability of sites for adult businesses and finds that under the
distance and locational restrictions imposed by this Ordinance there are sufficient sites available
for adult businesses within Chula Vista.
H. Relying on the following, the City finds that sexually oriented businesses in its
community may lead to detrimental secondary effects including prostitution and engagement in
unlawful sexual activity. The City bases this conclusion on the experiences of Chula Vista, as
well as that of other California communities, such as La Habra and Arcadia, which the City has a
reasonable basis to believe reflect the experiences of its own community, including numerous
police reports and affidavits from those communities, and judicial decisions in the public record:
1. Evidence indicates that some dancers, models, entertainers, performers,
and other persons who publicly perform specified sexual activities or publicly display specified
anatomical areas in sexually oriented businesses (collectively referred to as "performers ") have
been found to engage in sexual activities with patrons of sexually oriented businesses on the site
of the sexually oriented business.
2. Evidence has demonstrated that performers employed by sexually oriented
businesses have been found to offer and provide private shows to patrons who, for a price, are
permitted to observe and participate with the performers in live sex shows.
3. Evidence indicates that performers at sexually oriented businesses have
been found to engage in acts of prostitution with patrons of the establishment.
4. Evidence indicates that fully enclosed booths, individual viewing areas,
and other small rooms whose interiors cannot be seen from public areas of the establishment
regularly have been found to be used as locations for engaging in unlawful sexual activity.
5. As a result of the above, and the increase in incidents of HIV, AIDS, and
hepatitis B, which are sexually transmitted or blood borne diseases, the City has a substantial
interest in adopting regulations that will reduce the possibility for the occurrence of prostitution
and unlawful sex acts at sexually oriented businesses in order to protect the health, safety, and
Ordinance
Page 5
well -being of its citizens. The City finds this is relevant to Chula Vista and the need to regulate
the secondary effects of sexually oriented businesses within the community.
I. The City Council recognizes and relies on the findings set forth in the 1986
Attorney General's Report on Pornography. A copy of the Attorney General's Report on
Pornography is available for public review at the City Clerk's office.
J. The City Council recognizes the possible harmful effects on children and minors
exposed to the effects of sexually oriented businesses and recognizes the need to enact
regulations which will minimize and/or eliminate such exposure. The City Council takes
legislative notice of the Penal Code provisions authorizing local governments to regulate matter
that is harmful to minors (i.e., Penal Code § 313 et seq.). The City Council further takes
legislative notice of the cases that recognize that protection of minors from sexually explicit
materials is a compelling government interest, including Crawford v. Lungren, 96 F.3d 380 (9th
Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40
Cal.App.4th 1075 (1995).
K. While the City Council is obligated to protect the rights conferred by the United
States Constitution to sexually oriented businesses, it does so in a manner that ensures the
continued and orderly use and development of property within the City and diminishes, to the
greatest extent feasible, those undesirable adverse secondary effects which the above mentioned
studies have shown to be associated with the operation of sexually oriented businesses.
L. Zoning and locational restrictions are a legitimate and reasonable means of
helping to reduce the secondary effects from sexually oriented businesses and thereby protect the
health, safety, and welfare of Chula Vista residents, protect citizens from increased crime,
preserve the quality of life, and preserve the character of surrounding neighborhoods and
businesses, and deter the spread of urban blight. The zoning and locational requirements
contained in this Ordinance do not unreasonably restrict the establishment or operation of
constitutionally protected sexually oriented businesses in Chula Vista.
M. The City Council in recognizing that these standards do not preclude reasonable
alternative avenues of communication and notes that the proliferation of sexually oriented
material on the Internet, satellite television, direct television, CDs, DVDs, all provide alternative
avenues of communication. Additionally, the City Council takes note that numerous web -based
services, such as www.sugardvd.com and www.wantedlist.com, deliver adult videos and DVDs
directly to customers' homes via the mail. The City Council recognizes the following review of
one of these web -based services: "SugarDVD has made it so easy to rent and view adult movies,
you may never leave your house again ... SugarDVD is discreet with quick turnaround times and
a massive selection ... SugarDVD offers six rental plans, catering to the casual porn viewer and
diehards who can never get enough hard -core fare." (Hustler Magazine, January 2006.) The
City Council also considers and relies on published decisions examining the proliferation of
communications on the Internet. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
[the principle channel through which many Americans now transmit and receive sexually explicit
communication is the Internet]; Anheuser -Busch v. Schmoke, 101 F.3d 325 (4th Cir. 1996), cert.
denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a First Amendment challenge to a
Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the
Ordinance
Page 6
Internet is one available channel of communication]; U.S. v. Hockings, 129 F.3d 1069 (9th Cir.
1997); see also U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996), cent. denied 519 U.S. 820
[recognizing the Internet as a medium for transmission of sexually explicit material in the
context of obscenity prosecutions]. The Internet brings with it a virtually unlimited additional
source of adult oriented sexual materials available to interested persons in every community with
a mere keystroke. A sexually oriented business no longer has to be "actually" physically located
in a city to be available in the community.
N. It is not the intent of the City Council in enacting this Ordinance or any provision
thereof to condone or legitimize the distribution of obscene material, and the City and its Council
recognize that state law prohibits the distribution of obscene materials and expect and encourage
law enforcement officials to enforce state obscenity statutes against such illegal activities in
Chula Vista.
O. The City Council does not intend to regulate in any area preempted by California
law including, but not limited to, regulation of obscene speech, nor is it the intent of the City
Council to preempt regulations of the state Alcoholic Beverage Control Department ( "ABC ").
P. Nothing in this Ordinance is intended to authorize, legalize, or permit the
establishment, operation, or maintenance of any business, building, or use which violates any
other City ordinance in any respect, or any statute of the State of California regarding public
nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter,
or the exhibition or public display thereof.
SECTION 2. AMENDMENT OF MUNICIPAL CODE TITLE 19 (PLANNING
AND ZONING), SECTION 19.04 (DEFINITIONS)
The following Definitions found in Section 19.04 (Definitions) of Title 19 (Planning and
Zoning) of the Chula Vista Municipal Code are hereby repealed:
19.04.007 — adult bookstores
19.04.007A — adult motion picture theater
19.04.007B — adult mini - motion picture theater
19.04.035 — body painting studio
19.04.047 — cabaret
19.04.051 — coin - operated adult entertainment facility
19.04.155 — model studio
19.04.205 — sexual encounter studio
19.04.205.1 — sexually explicit material
Ordinance
Page 7
19.04.270 — specified anatomical areas
19.04.271 — specified sexual activity
SECTION 3. AMENDMENT OF MUNICIPAL CODE TITLE 19 (PLANNING
AND ZONING), SECTION 19.04 (DEFINITIONS)
Section 19.04.063 (Definitions) of Title 19 (Planning and Zoning) is hereby repealed and
replaced with:
19.04.063 Dancehall and Dance Floor
"Dance floor" shall mean a defined floor area located within a business establishment
designed for the purpose of dancing by patrons of the establishment.
19.04.200.1 School
"School" means any child or day care facility, or an institution of learning for minors,
whether public or private, offering instruction in those courses of study required by the
California Education Code and maintained pursuant to standards set by the State Board of
Education. This definition includes nursery school, kindergarten, elementary school, middle or
junior high school, senior high school, or any special institution of education, but it does not
include a vocational or professional institution of higher education, including a community or
junior college, college, or university.
19.04.169 Park
"Park" means the land and easements owned or leased by the City of Chula Vista which,
by ordinance, resolution, regulation or agreement, is dedicated to or operated by the City for
purposes of sports and public recreation. The term shall include the buildings, parking lots,
streets and sidewalks within the territorial boundaries establishing the park.
19.04.050.1 Religious Institution
"Religious Institution" means an institution that people regularly attend to participate in
or hold religious services and incidental religious education, but not including private schools as
defined in this section.
19.04.065 Day Spa
"Day Spa" means a business which provides a variety of services for the purpose of
improving health, beauty and relaxation through personal care treatments. Treatments may
include foot and body massage; facials; waxing; body wraps; salt scrubs; manicures; pedicures;
aromatherapy; moxibustion; ear candling; and guasha (scraping), or other similar treatments.
Ordinance
Page 8
SECTION 4. AMENDMENT OF MUNICIPAL CODE TITLE 19 (PLANNING
AND ZONING), SECTION 19.58 (USES)
Section 19.58.024 (Uses — Sexually Oriented Businesses) of Title 19 (Planning and
Zoning) is hereby repealed and replaced with:
19.58.024 Sexually Oriented Businesses.
A. Sexually oriented businesses shall be defined for purposes of this Chapter as set forth in
Chapter 9.13.
B. Location Requirements.
1. A sexually oriented business shall only be located in the C -T zone or in a zone
identified in the Bayfront Specific Plan, the Eastlake I, Eastlake Business Center II and Eastlake
II Sectional Planning Areas (SPA) as allowing such businesses. If a specific plan/planned
community district allows a use conditionally (i.e., upon the issuance of a conditional use
permit), this CUP requirement shall be satisfied by the sexually oriented business if such
business has a valid sexually oriented business regulatory license as provided for in Chapter
9.13.
2. A sexually oriented business shall not be located within 500 feet of residentially
zoned territory, which is located upon the same street or streets, or within 500 feet of
residentially zoned or residentially used properties as measured along street rights -of -way from
the proposed location to the boundary line of said residentially zoned or used properties, or
within 500 feet measured radially of any building site containing a school, park or religious
institution.
3. A sexually oriented business shall not be located within 1,000 feet of another
sexually oriented business.
C. Specific Standards — View of Interior from Public Way. All building openings, entries
and windows from sexually oriented businesses shall be located, covered or screened in such a
manner as to prevent a view into the interior from any public or semipublic area, including
public sidewalks, streets, arcades, hallways or passageways, of any material which has as its
primary or dominant theme matter depicting, illustrating, describing or relating to specified
sexual activities or specified anatomical areas as defined in Chapter 9.13. Further, such
businesses may not have window displays which in any way present, depict, illustrate or describe
any such sexually oriented material.
SECTION 5. AMENDMENT OF MUNICIPAL CODE TITLE 19 (PLANNING
AND ZONING), SECTION 19.40 (USES)
Section 19.40.020, subsection N is hereby repealed and replaced with:
19.40.020 Permitted Uses
N. Sexually- oriented businesses, subject to the provisions of CVMC 19.58.024.
Ordinance
Page 9
SECTION 6. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
FINDINGS.
City Council has reviewed the proposed activity for compliance with the California
Environmental Quality Act (CEQA) and has determined that the proposed activity is not a
"Project" as defined under section 15378 of the State CEQA Guidelines because the adoption of
this ordinance, will not result in a physical change to the environment; therefore, pursuant to
Section 15060(c)(3) of the State CEQA Guidelines the proposed activity is not subject to CEQA.
Notwithstanding the forgoing, City Council has further determined that there is also no
possibility that the proposed activity will have a significant effect on the environment; therefore,
pursuant to Section 15061(b)(3) of the State CEQA Guidelines the activity is exempt from the
provisions of CEQA.
SECTION 7. SEVERABILITY.
If any portion of this Ordinance, or its application to any person or circumstance, is for
any reason held to be invalid, unenforceable or unconstitutional, by a court of competent
jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or
unconstitutionality shall not affect the validity or enforceability of the remaining portions of the
Ordinance, or its application to any other person or circumstance. The City Council of the City
of Chula Vista hereby declares that it would have adopted each section, sentence, clause or
phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences,
clauses or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional.
SECTION 8. EFFECTIVE DATE.
This Ordinance shall take effect and be in force on the 30th day after its final passage.
SECTION 9. PUBLICATION.
The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause
the same to be published or posted according to law.
Presented by Approved as to form by
Kelly Broughton
Development Services Director
Glen R. Googins
City Attorney
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City of Chula Vista
Exhibits to Staff Report to City Council
November 1, 2412
Volume Y
A. Studies Documenting The Negative Secondary Side Effects,Of Adult
Businesses
1. Partial Summary. of Secondary Effect Studies
2. Summaries of Key Reports Concerning the Negative Secondary Effects of
Sexually Oriented Businesses, compiled by Louis F. Comus III
3. Amarillo, Texas, Planning Department (1977)
4. Austin, Texas, Office of Land Development Services (1986)
S. Beaumont, Texas (1982)
6. Chattanooga, Tennessee (2003)
7. Cleveland, Ohio (1977)
8. Dallas, Texas (1997)
9. Dallas, Texas (2007) .
10. Ft. Worth, Texas (2004)
11. Garden Grove, California (199 1)
12. Greensboro, North Carolina (2003)
13. Houston, Texas, City Council Report (1997)
14. Indianapolis, Indiana, Department of Metropolitan Development (1984)
1
Attachment 2
Volume H
15. Jackson County, Missouri (2008)
16. Kennedale, Texas (2005)
17. Littleton, Colorado (2004)
18. Los Angeles, California, Department of City Planning (1977)
19. Louisville, Kentucky (2004)
20. Report of the Attorney General's Working Group on the Regulation -of
Sexually Oriented Businesses, State of Minnesota (1989)
21. New York, New York (1994)
22. Newport News, Virginia (1996)
23. Oklahoma City, Oklahoma (1986)
24. Phoenix, Arizona (1979)
25. St. Cloud, Minnesota (1994)
26. Seattle, Washington, Department of Construction and Land Use (1989)
Volume III
27. Spokane, Washington (2001)
28. Times Square, New York City (1994)
29. Tucson, Arizona (1990)
30. Whittier, California (1978)
31. A Methodological Critique of the Linz -Paul Report: A Report to the San
Diego City Attorney's Office (March 2'1, 2003)
32. Testimony of David Sherman Before the Michigan House Committee on
Ethics and Constitfitional Law (2000)
2
33. Closin' Time: Effective Regulation of Adult Businesses' Hours of
Operation, by Scott Berthold (2000)
34. Peep Show Establishments, Police Activity, Public Place and Time: A
Study of Secondary Effects in San Diego, California, by Daniel Linz et al.
(2004)
35. Do Peep -shows "Cause" Crime? A Response to Linz, Paul, and Yao, by
Richard McCleary et al. (2006)
36. "Rural Hotspots: The Case of Adult Businesses," 19 Criminal Justice Policy
Review 153 (2008)
37. "Correlates of Current Transactional Sex among a Sample of Female Exotic
Dancers in Baltimore, MD," Journal of Urban Health (2011)
38. "Stripclubs-According to Strippers: Exposing Workplace Sexual Violence,"
by Kelly Holsopple, Program Director, Freedom and Justice Center for
Prostitution Resources, Minneapolis, Minnesota
Volume IV
39. 1986 Attorney General's Report on Pornography, Volume 1
Volume V
40. 1986 Attorney General's Report on Pornography, Volume 2
Volume VI
B. Other Supporting Documentation
1: Declarations from Fullerton Police Officers Craig Brower, Mike Chocek,
and ABC Investigator Kevin Ortega related to the City of La Habra's
Nuisance Abatement Action for a Totally Nude Facility
2. Police reports of investigations conducted by -City of La Habra
3. Interview of Julia (Nude Dancer)
4. Det. Robert Navarro's presentation on "Harmful Effects of Pornography,
Los Angeles Case Study" (1994)
3
5. "My Personal Experience With Sexually Oriented Business" by Gene
McConnell
6. Letter from Lorraine Day, M.D. regarding the AIDS virus
7. Sheriff s Report to City Council of City of Encinitas, November 9, 1998
8. City of Arcadia Police Department undercover surveillance reports, 2000
9. HIV /AIDS Epidemiology Report, 2010, prepared by County of San Diego
Health and Human Services Agency
10. SDT Fact Sheet, Sexually Transmitted Diseases by Year of Report, San
Diego County; 1994 -2008, prepaed by County of San Diego Health and
Human Services Agency
11. California Communicable Disease Summary 2000, Issued July 2002,
prepared by County of Orange Health Care Agency
12. HTV /AIDS Surveillance Statistics, 2003, Issued October 2004, prepared by
County of Orange Health Care Agency
Volume VII
C. Published Cases
1. 4805 Convoy, Inc. v. City. of San Diego, 183 F.3d 1108 (9th Cir. 1999)
2. 7978 Corporation v. Pitchess, 41 Cal.App.3d 42 (1974)
3. 84 Video/Newsstand, Inca v. Sartini, 455 Fed.Appx. 541 (6th Cir. 2011)
4. Alameda Books, Inc. v. City of Los Angeles, 631. F.3 d 1031 (9th Cir. 2011)
5, Anheuser- Busch'v. Schmoke, 101 F.3d 325 (4th Cir. 1996)
6. Baby Tam & Co., Inc. v. City of Las Vegas ( "Baby Tam P'), 154 F.3d 1097
(9th Cir. 1998)
7. Baby Tam & Co., Inc.'v. City of Las Vegas ( "Baby Tam.[ ?), 199 F.3d 1111
(9th Cir. 2000)
4
8. Baby Tam & Co., Inc. v. City of Las Vegas ( "Baby Tam Iff'), 247 F.3d 1003
(9th Cir. 200 1)
9. Bamon Corporation v. City of Dayton, 923 F.2d 470 (6th Cir. 1991)
10. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)
11. Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003)
12. Berry v. City of Santa Barbara, 40 Cal.App.4th 1075 (1995)
13. Brownell v. City of Rochester, 190 F.Supp.2d 472 (W.D.N.Y. 200 1)
14. BSA, Inc. v. King County, 804 P.2d 1004 (9th Cir. 1986)
15. Cdlifornia v. La Rue, 409 U.S. 109 (1972)
16, Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir.
2004)
17. - Chamblee Visuals, LLC v. City of Chamblee, 506 S.E.2d 113 (Ga. 1998)
18. City of Colorado Springs v. 2354 Inc. dba Baby Dolls, 896 P.2d 272 (Co.
1995)
19. City of Dallas v. Stanglin, 490 U.S. 19 (1989)
20. City of Erie v. Pap's A.M. C Kandyland "), 529 U.S. 277 (2000)
21. City of Littleton, Colorado v. Z.J. Gifts D -4, 541 U.S. 744 (2004)
22. City of Los Angeles v. Alameda Books, Inc., 535 U.S._425 (2002)
23. City of National City v. Wiener, 3 Cal.4th 832 (1993)
24. City of Renton v. Playtime Theatres, Inc.; 475 U.S. 41 (1986)
25. City of Vallejo v. Adult Books, 167 Cal.App.3d 1169 (1985)
26. Clark v. City of Lakewood, 259 F.3d 996 (9th Cir. 200 1)
27. Club Southern Burlesque, Inc. v. City of Carrolton, 265 Ga. 528, 457
S.E.2d 816 (1995)
5
28. Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998)
29. Crawford v. Lungren, 96 F.3d 380 (91h Cir. 1996)
30, Daytona Gr and, Inc. v. City of Daytona Beach, 490 F.3d.860 (11th Cir. 2007)
31. Deluxe Theater & Bookstore, Inc. v. City of San Diego, • 1.75 Ca1.App.3d 980
(1985)
32. Department of Alcoholic Beverage Control v. Alcoholic Beverage Control
Appeals Board of California ( "Vicary "), 99 Cal.App.4th 880 (2002)
33. Deja Vu-Everett-Federal Way, Inc. v. City of Federal Way, 46 Fed.Appx. 409
(9th Cir. 2002)
Volume VIII
34. Deja Vu of Nashville, Inc. v. Metro Gov't of Nashville and Davidson
County, 274 F.3d 377 (6th Cir. 200 1)
35. • Diamond v. City of Taft, 215 F.3d 1052.(9th Cir. 2000)
36. DiMa Corp. V. Town ofHallie, 185 F.3d 823 (7th Cir. 1999
37. Doctor John's, Inc. v. City of Roy, 465 F.3d 1150 (10th Cir. 2006)
38. Dream Palace v. County ofMaricopa, 384 F.3d 990 (9th Cir. 2004)
39. DLS, Inc. v. City of Chattanooga,. 894 F.Supp. 1140 (ER Tenn. 1995)
40. Doe-v. City of Minneapolis, 898 F.2d 612 (8th Cir. 1990)
41. Ellwest Stereo Theatre, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982)
42. Entertainment Prods., Inc. v. Shelby County, 588 F.3d 372 (6th Cir. 2009).
43. E. WAY., Inc. v. City of Los Angeles, 56 Cai.App.4th 310 (1997)
44. Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546 (5th Cir. 2006)
45. Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th Cir. 2007)
46. Flanigan's Enters., Inc. v. Fulton County, 596 F.3d 1265 (11th Cir. 2010)
47. Ford v. State of Texas, 753 S.W.2d 451 (Tx. 198 8)
48. FW /PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir. 1988)
49. FW /PBS, Inc. v. City ofDallas, 493 U.S. 215 (1990)
50. Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), amended 402
F.3d 875
51. G.M. Enterprises v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003)
52. H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007)
53. Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th-Cir. 1995)
54. Imaginary Images, Inc. v. Evans, 612 F.3d 736 (4th Cir. 20 10)
55, International Eateries v. Broward County, 941 F.2d 1157 (11th Cir. 1991),
cert. denied 503 U.S. 920 (1992)
56. Isbell v. City of San Diego, 450 F.Supp.2d 1143 (S.D. Cal 2006)
57. Isbell v. City of San Diego, 258 F.3d 1108 (9th Cir. 2001)
58. Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986)
59. Krontz v. City of San Diego, 136 Cal.App.4th 1126 (2006)
60. Lacy Street Hospitality Service, Inc. v. City of Los Angeles, 125 Cal.App.4th
526(2004).
61. Lady J. Lingerie, Inc. v. City of Jacksonville, 973 F.Sup. 1428 (M.D. Fla.
1997)
62. Lady J. Lingerie, Inc, v. City of Jacksonville, 176 F.3d 1358 (11th Cir.
1999)
63. Lakeland Lounge v. City of Jacksonville, 973 F.2d 1255 (5th Cir. 1992)
64. Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000)
65. LLEH, Inc. v. Wichita County, 289 F.3d 358 (5th Cir. 2002)
66. Lydo Ent. v. Las Vegas, 745 F.2d 1211 (9th Cir. 1984)
fd
67. Madain v. City of Stanton, 185 Cal.AppAth 1277 (2010)
68. - McCrothers Corp. d1b /a Tree City Bar, et al. v City of Madan, 728 N.W.2d
124 (2007)
69. Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir.
1993)
70. -National Amusements, Inc. v. Town of Dedham, 43 F:3d 731 (1st Cir. 1995)
71. N. W, Enterprises, Inc, v. City of Houston, 352 F.3d 162 (5th Cir. 2003)
72. N. W. Enterprises, Inc. V. City of Houston, 372 F.3 d 333 -(5th Cir. 2004)
73. N.Y. State. Liquor Authority v. Bellanca,.452 U.S. 714 (1981)
74. Ocello v. Koster, 354 S.W.3'd 187 (Mo. 2011)
Volume IX
75. Parker*dba Paperdolls v. Whiffield County, 463 S.E.2d 116 (Ga. 1995)
76. Peek -a -Boo Lounge v. Manatee County, 630 F.3d 1346 (1 lth Cir. 2011)
77. People v. Superior Court (Lucero), 49 Cal.3d 14 (1989)
78. - Pleasureland Museum, Inc. v. Beutter, 288 F.3d 988 (7th Cir. 2002)
79. Red Bluff Drive -In, Inc. v. Vance, 648 F.2d 1020 (5th Cir. 1981)
80. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)-
81. Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998)
82. -Sensations, Inc. v. City of drand Rapids, 526 F.3d 291 (6th Cir. 2008)
83. Sewell v. State of Georgia, 233 S.E.2d 187 (Ga. 1977) -
84. SOB, Inc. v. City of Benton,. 317 F.3d 856, 863 (8th Cir. 2003)
85. Spokane Arcade, Inc, v. City of Spokane, 75 F.3d 663 (9th Cir. 1996)
86. Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986)
8
87. Sundance Saloon, Inc. v. City of San Diego, 213 Cal.App. 3d 807 (1989)
88. Talk of the Town v. Department of Finance and Business Services, 343 F.3d
1063 (9th Cir. 2003)
89. Tee & Bee v. City of West Allis, 936 F. Supp. 1479-(E.D. Wis. 1996)
90. My B., Inc. v. City of Newport Beach, 69 Cal.AppAth 1 (1998)
91. TK's Video, Inc. v. Denton County, Tex., 24 F.3d 705 (5th Cir. 1994)
92. Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993)
93. U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997)
94. U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996)
95. Wall Distributors, Inc. v. City ofNewport-News, Virginia, 782 F.2d 1165
(4th Cir. 1986)
96. World Wide Video v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004)
97. Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976)
98. Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000)
1989612.111675.002
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SUMMARY OF LAND USE STUDIES RELATING TO
SECONDARY EFFECTS OF "ADULT" BUSINESSES
1. LAND USE STUDY: Amarillo, Texas
DATE: September 12, 1977
OVERVIEW: This.planning department report cites several sources including
national news magazines; "adult business" ordinances from other cities, and American
Society of Planning Officials report and pertinent Supreme Court decisions. Lengthy
explanation of the Miller test (with legal definitions), discussions of Young v. American
Mini Theaters, and a comparison of the Boston and Detroit zoning models are included.
The city defined "adult businesses" as taverns, lounges, lounges with semi -nude
entertainment, and-bookstores or theaters with publications featuring nudity and explicit
sexual activities. At the time, Amarillo-had three such theaters and four bookstores with
space for such publications.
FINDINGS: The police department provided an analysis showing that areas of
concentrated "adult only" businesses had 2' /z times the street crime as the city average.
The planning department concluded that concentrations of these businesses have
detrimental effects on residential and commercial activities caused by: (1) noise, lighting
and traffic during late night hours; (2) increased opportunity for street crimes; and (3) the
tendency of citizens to avid such business areas. The study noted that lack of zoning
regulations would lead to concentrations of sexually oriented businesses (causing
increased crime) or more such establishments locating near residential areas or family
and juvenile oriented activity sites (churches, parks, etc.).
RECOMMENDATIONS: (1) Adult businesses locate 1,000 feet from each other;
no recommended distance was specified from residential zones or family /juvenile
activities; (2) city development of an amortization schedule and permit/licensing
mechanism; (3) city regulation of-signs and similar forms of advertising; (4) vigorous
enforcement of State Penal Code, especially relating to "harmful to minors;" and (S) city
amendments prohibiting minors form viewing or purchasing sexually oriented materials
(enforced physical barriers).
2. LAND USE STUDY: Austin, Texas
DATED: May 19, 1986
OVERVIEW: The report was the basis for developing an amendment to existing
sexually oriented business ordinances. At the time, 49 such businesses operated in
Austin, mostly bookstores, theaters, massage parlors and topless bars. The study
examined crime rates, property values, and trade area characteristics.
Attachment 3
The report focused on sexually related crimes in four study areas (with sexually
oriented businesses) and four control areas (close to study areas and similar). Two study
areas had one sexually oriented business and the others had two such businesses. To
determine the effects of these businesses on property values, the city sent surveys to 120
real estate appraising or lending firms (nearly half responded). For trade area
characteristics, three .businesses (a bookstore, theater and topless bar) were observed on a
weekend night to determine customer addresses.
CRIME: Sexually related crime ranged from 177 -482% higher in the four study
areas than the.city average. In the two study areas containing two sexually oriented
businesses, the rate was 66% higher than in the study areas with one such business. All
control areas had crime rates near the city average.
REAL ESTATE: 88% said that a sexually oriented business within one block of a
residential area decreases the value of the homes (33% said depreciation would be at
least 20 %). Respondents also said such a business is a sign of neighborhood decline,
making underwriters hesitant to approve the 90 -95% financing most home buyers
require. They said commercial property is also negatively effected by such businesses.
TRADE AREA CHARACTERISTICS: Of 81 license plates traced for owner
address, only three lived within one mile of the sexually oriented business. 44% were
from outside Austin.
RECOMMENDATIONS: (1) Sexually oriented businesses should be limited to
highway or regionally- oriented zone districts; (2) businesses should be dispersed to avoid
concentration; and (3) conditional use permits should be required for these businesses.
3. LAND USE STUDY: Beaumont, Texas
DATE: September 14,1982*
OVERVIEW: This report by the city planning department encourages
amendments to existing "adult business" ordinances to include eating or drinking places
featuring sexually oriented entertainment (strippers, etc.). Zoning laws required "adult
uses" to locate 500 feet from residential areas; 300 feet from any other adult bookstore,
adult theater, bar, pool hall or liquor store; and 1,000 feet from a church, school, park, or
recreational facility where minors congregate.
CRIME: Police verified that bars, taverns, and lounges (especially those with
sexually oriented entertainment) are frequent scenes of prostitution and the sale/use of
narcotics. On the whole, all criminal activity was higher at sexually oriented businesses.
2
RECOMMENDATIONS: (1) Add eating/drinking places that exclude minors
(under Texas law), unless accompanied by a consenting parent, guardian or spouse; (2)
require specific permits for areas zoned as General Commercial - Multiple Family
Dwelling Districts; and (3) reduce the required distance of sexually oriented businesses
from residential areas, school, sparks, and recreational facilities from 1,000 to 750 feet.
4. LAND USE STUDY. Cleveland, Ohio
DATE: August 24, 1977
OVERVIEW: This police department report is taken from information given by
Captain Delau participating in a panel discussion at the National Conference on the
Blight of Obscenity held in Cleveland July 28 -29, 1977. The topic was "The Impact of
Obscenity on the Total Community." Crime statistics are included for 1976 robberies
and rapes. Areas evaluated were census tracts (204 in the whole city, 15 study tracts with
sexually oriented businesses). At the time of the study, Cleveland had 26 pornography
outlets (8 movie houses and 18 bookstores with peep shows). Their location was not
regulated by city zoning laws.
FINDINGS: For 1976, study tracts had nearly double the number of robberies as
the city as a whole (40.5 per study tract compared to 20.5 for other city tracts). In one
study tract with five sexually oriented businesses and 730 people, there were 136
robberies. In the city's largest tract (13,587 people, zero pornography outlets) there were
only 14 robberies. Of the three tracts with the highest incidence of rape, two had
sexually oriented businesses and the third bordered a tract with two such businesses. In
these three, there were 41 rapes in 1976 (14 per tract), nearly seven times the city average
of 2.4 rapes per census tract.
CONCLUSION: "Close scrutiny of the figures from the Data Processing Unit on
any and every phase of the degree of crime as recorded by census tracts indicates much
higher crime rate where the pornography outlets are located."
5. LAND USE STUDY: Garden Grove, California
DATE: October 23,1991
OVERVIEW: This report by independent consultants summarizes statistical
analyses to determine a basis for adult business regulations because of their negative
impact on the community in terms of crime, decreased property values and diminished.
quality of life. Statistics were measured form 1981 -90 and included crime data, and
surveys of real estate professionals and city residents. Garden Grove Boulevard, with
seven adult businesses, was selected as the study area. The study incorporated many
control factors to insure accurate results. The report includes a brief legal history of adult
business regulation and an extensive appendix with samples, materials and a proposed
statute.
CRIME: Crime increases significantly with the opening of an adult business or
with the expansion of an existing business or the addition of a bar nearby. The rise was
greatest in "serious" offenses (termed "Part I" crimes: homicide, rape, robbery, assault,
burglary, theft and auto theft). Qn Garden Grove Boulevard, the seven adult businesses
accounted for 36% of all crime in the area. In one case, a bar opened less than 500 feet
from an adult business, and serious crime within 1,000 feet of that business rose more
than 300% the next year.
REAL ESTATE: Overwhelmingly, respondents said that an adult business within
200 -500 feet of residential and commercial property depreciates the property value. The
greatest impact was on single family homes. The chief factor cited for the depreciation
was the increased crime associated with adult businesses.
HOUSEHOLD SURVEYS: 118 calls were completed in a random sample of
households in the Garden Grove Boulevard vicinity, The public consensus was that
adult businesses on Garden Grove Boulevard were a serious problem Nearly 25% of the
surveyed individuals lived within 1,000 feet of an adult business. More than 21% cited
specific personal experiences of problems relating to these businesses, including crime,
noise, litter, and general quality of life: 80% said they would want to move if an adult
business opened in their neighborhood, 60% saying they "would move" or "probably
would move." 85% supported city regulation of the. locations of adult businesses, with
78% strongly advocating the prohibition of adult businesses within 500 feet of a
residential area, school.or church. Women commonly expressed fear for themselves and
their children because of adult businesses.
RECOMMENDATIONS: The report concludes that adult businesses have "real
impact" on everyday life through harmful secondary effects and makes four
recommendations: (1) keep current requirement of 1,000 feet separation between adult
businesses; (2) prohibit adult establishments within 1,000 feet of residential areas; (3)
enact a system of conditional use permits for adult businesses with Police Department
involvement in every aspect of the process; and (4) prohibit bars /taverns within 1,000
feet of an adult business.
6. LAND USE STUDY: Houston, Texas
DATE: November 3, 1983
OVERVIEW: Report by the Committee on the Proposed Regulation of Sexually
Oriented Businesses determines-the need and appropriate means of regulating such
businesses. Four public hearings provided testimony from residents, business owners,
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realtors, appraisers, police and psychologists. The committee and legal department then
reviewed the transcripts and drafted a proposed ordinance. More hearings obtained
public opinion on the proposal and the ordinance was refined for vote by the City
Council.
TESTIMONY: The testimony was summarized into six broad premises: (1) the
rights of individuals were affirmed; (2) sexually oriented businesses could exist within
regulations that minimize their adverse effects; (3) the most important negative effects
were on neighborhood protection, community enhancement, and property values; (4)
problems increased when these businesses were cont;entrated; (5) such businesses
contributed to criminal activities; and (6) enforcement of existing statutes were difficult.
. ORDINANCE: (1) Required permits for sexually oriented businesses (non-
refundable $350 application fee); (2) distance requirements: 750 feet from a church or
school; 1,000 feet from other such businesses; 1,000 foot radius from an area of 75%
residential concentration; (3) amortization period of six months that could be extended
by the city indefinitely on the basis of evidence; (4) revocation of permit for employing
minors (under 17), blighting exterior appearance or signage, chronic criminal activity
(three convictions), and false permit information; and (5) age restrictions for entry.
LAND USE STUDY: Houston, TX
DATE: January 7, 1997
OVERVIEW: This report by the Sexually Oriented Business Revision Committee
to the City Council concerns a proposed amendment and addition to the present
ordinance. The report summarizes prior efforts to regulate sexually oriented businesses,
testimony by the Vice Division of the Houston Police Department, reports and requests,
citizen correspondence, industry memos, legal department research, the public testimony
taken by the Committee. The purpose of this report was to review the existing city
ordinance and the city's ability to enforce it, and to assess and analyze the ordinance with
respect to its strengths and weaknesses in terms of how effectively the ordinance protects
the public and the businesses subject to regulation.
FINDINGS /CONCLUSIONS: (1) Because of criminal activities associated with
sexually oriented businesses, requiring the licensing of entertainers and managers can
establish a foundation for documenting those with prior convictions for prostitution,
public lewdness, etc. and can help eliminate underage entertainers (under 18); (2) a
serious predicament in obtaining convictions for public lewdness, prostitution, indecent
exposure, and other criminal activities exists because police officers do not engage in
inappropriate behavior and the entertainer thus avoids lewd behavior that might normally
occur; (3) "glory holes" are used to promote anonymous sex and facilitate the spread of
sexually transmitted diseases; (4) sexually oriented businesses that did not have clear
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lines of vision encouraged lewd behavior or sexual contact; (5) multi- family tracts were
being counted as one tract in the residential quota., although many families were living
independently upon one tract; (6) inadequate lighting prevents managers and police
officers from monitoring illegal activities, and one possible approach is to make lighting
requirements similar to the minimum requirements of the Uniform Building Code for
"exit" signs; (7) businesses with locked rooms were often used as fronts for prostitution;
(8) public parks and possibly private parks should be included in distancing restrictions;
(9) notification of a pending sexually oriented business permit should be given to
surrounding neighbors of proposed sites; and (10) continuation of the amortization
provisions of the previous ordinances would be preferable to grandfathering
nonconforming sexually oriented businesses since grandfathering such businesses allows
those uses to continue in perpetuity, creates a monopolistic position for such uses and
prevents the municipality from exercising its power to protect its residents.
ORDINANCE: (1) include "arcade devices" (enclosed booths) intended for
viewing by less than one hundred persons in the prohibition for enclosed booths; (2)
prohibit wall penetrations ( "glory holes "); (3) increase distance requirements from 750
feet to 1,500 feet for churches, schools and day care centers, and increase the radius for
counting residential tracts from 1,000 feet to 1,500 feet, without unduly restricting
availability of locations; (4) for each acre of multi - family tract, utilize a ratio of eight
single family tracts; (5) extend signage and exterior appearance restrictions to businesses
located in multi -tenant centers; (6) require lighting of intensity to illuminate customer
areas to not less than one foot candle as measured at four feet above floor level; (7)
include public parks and if possible, private parks as protected land uses; (8) upon filing
of a permit application, applicants must place signs at the premises and publish notices in
the newspaper; (9) require permits for all entertainers and managers; (10) prohibit
entertainers from touching customers; and (11) continue amortization of 'existing
businesses with extensions of time for affected businesses to comply (prior average
extensions were for about 2 to 3 years).
7. LAND USE STUDY: Indianapolis, Indiana
DATED: February 1984.
OVERVIEW: After a ten year growth in the number of sexually oriented
businesses (to a total of 68 of 43 sites) and numerous citizens' complaints of decreasing
property values and rising crime, the city compared six sexually oriented business
"study" areas and six "control" locations with each other and with the city as a whole.
The study and control areas had high population, low income and older residences. In
order to develop a "best professional opinion," the city collaborated with Indiana
University on a national survey of real estate appraisers to determine valuation effects of
sexually oriented businesses on adjacent properties.
CRIME: From 1978 -82, crime increases in the study areas were 23% higher than
the control areas (46% higher than the city as a whole). Sex related crimes in the study
areas increased more than 20% over the control areas. Residential locations in the study
areas had a 56% greater crime increase than commercial study areas. Sex related crimes
were four times more common in residential study areas than commercial study areas
with sexually oriented businesses.
REAL ESTATE: Homes in the study areas appreciated at only % the rate of
homes in the control areas, and 1/3 the rate of the city. "Pressures within the study areas"
caused, a slight increase in real estate listings, while the city as a whole had a 50%
decrease, denoting high occupancy turnover. Appraisers responding to the survey said
one sexually oriented business within one block of residences and businesses decreased
their value and half of the respondents said the immediate deprecation exceeded 10 %.
Appraisers also noted that value depreciation on residential areas near sexually oriented
businesses is greater than commercial locations. The report concludes: "the best
professional judgment available indicates overwhelmingly that adult entertainment
businesses — even a relatively passive use such as an adult bookstore — have a serious
negative effect on their immediate environs."
RECOMMENDATIONS: Sexually oriented businesses locate at least 500 feet
from residential areas, schools, churches or established historic areas.
8. LAND USE STUDY: Los Angeles, California
DATE: June 1977
OVERVIEW: The department of city planning studied the effects of the
concentration of sexually oriented businesses on surrounding properties for the years
1969 -75 (a time of proliferation for such businesses). The report focuses on five areas
with the greatest concentration of these businesses (compared to five "control" areas free
of them), and cites data from property assessments /sales, public meeting testimony, and
responses from two questionnaires (one to business /residential owners within a 500 foot
radius of the five study areas and a second to realtors /real estate appraisers and lenders).
Crime statistics in the study areas were compared to the city as a whole. Also included: a
chart of sexually oriented business regulations in eleven major cities, details of current
regulations available under state/municipal law, and appendices with samples of
questionnaires, letters, and other study materials.
PROPERTY: While empirical data from 1969 -75 did not conclusively show the
relation of property valuations to the concentration of sexually oriented businesses, more
than 90% of realtors, real estate. appraisers and lenders responding to city questionnaires
said that a grouping of such businesses within 500 -1,000 feet of residential property
decreases the market value of the homes. Also, testimony from residents and business
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people at two public meetings spoke overwhelmingly against the presence of sexually
oriented businesses citing fear, concern for children, loss of customers and difficulty in
hiring employees at non -adult businesses, and the necessity for churches to provide
guards for their parking lots.
CRIME: More crime occurred in areas of sexually oriented business
concentration. Compared to city -wide statistics for 1969 -75, areas with several such
businesses experienced greater increases in pandering (340 %), murder (42.3 %),
aggravated assault (45.2 0/6), robbery (52.6 %), and purse snatching (17 %). Street
robberies, where the criminal has face -to -face contact with his victim, increased almost
70% more in the study areas. A second category of crime, included other assaults,
forgery, fraud, counterfeiting, embezzlement, stolen property, prostitution, narcotics,
liquor laws, and gambling increased"42% more in the study areas over the city as a
whole.
RECOMMENDATIONS: The study recommended distances of more than 1,000
feet separating sexually oriented businesses from each other, and a minimum of 500 feet
separation of such businesses from schools, parks, churches and residential areas.
9. LAND USE STUDY: Minneapolis, Minnesota
DATE: October 1980
OVERVIEW: This report is divided into two sections: the relationship of bars
and crime and the impact of "adult businesses" on neighborhood deterioration. in the
study, an "adult business" is one where alcohol is served (including restaurants) or a
sexually oriented business (i.e., saunas, adult theaters and bookstores, rap parlors,
arcades, and bars with sexually oriented entertainment). Census tracts were used as study
areas and evaluated for housing values and crime rates. Housing values were determined
by the 1970 census compared to 1979 assessments. Crime rates were compared for
1974 -75 and 1979 -80. The study is strictly empirical and reported in a formal statistical
manner; therefore it is difficult for layman interpretation of the data.
FINDINGS: 'The report concludes that concentrations of sexually oriented
businesses have significant relationship to higher crime and lower property values. Other
than statistical charts, no statements of actual crime reports or housing values are
included in the report. Thus, the lay reader has only the most generalized statement of
how the committee interpreted the empirical data.
RECOMMENDATIONS: First, that adult businesses be at least 1 /10 mile (about
500 feet) from residential areas. Second, -that. adult business should not be adjacent to
each other or even a different type of late night business (k e_; 24 -hour laundromat, movie
theaters). Third, that adult businesses should be in large commercial zones in various
E -1
parts of the city (to aid police patrol and help separate adult businesses from residential
neighborhoods). The report said "policies which foster or supplement attitudes and
activities that strengthen the qualities of the neighborhood are more likely to have desired
impacts on crime and housing values than simple removal or restriction of adult
businesses."
10. LAND USE STUDY: New York, New York
DATE: November 1994
- OVERVIEW: This study by the Department of City Planning evaluates the nature
and extent of adverse impacts associated with adult entertainment uses in communities in
New York City, in response to the proliferation of such uses (35% increase in past 10
years) and the fact that current zoning regulations did not distinguish_ between adult
entertainment uses and other commercial uses without an "adult character." The study
reviewed studies in other localities, including Islip, Los Angeles, Indianapolis, Whittier,
Austin, Phoenix, and the State of Minnesota, as well as prior studies conducted in New
York City. Surveys in six study areas within the city (with lesser concentrations of adult
uses than Times Square) were conducted of representatives from community boards,
local organizations and local businesses, as well as real estate brokers, police and
sanitation officers, and representatives of the adult entertainment industry to gather
information on land use, street and signage conditions, and other impacts of adult
entertainment uses. An analysis of assessed values and crime data w' as also made.
FINDINGS: More than 75% of adult uses are located in zoning districts that
permit residential uses. Adult uses tend to concentrate, as 75% of the adult uses are
located in ten of the city's 59 Community Districts. Adult uses tend to cluster in central
locations or along major vehicular routes. Adult use accessory business signs are
characterically at odds with neighborhood character — such signs generally occupy a
greater percentage of storefront surface area, are more often illuminated and more often
portray graphic, sexually- oriented images than the signs of other nearby commercial uses.
80% of surveyed real estate brokers reported that an adult entertainment use would have
a negative impact upon the market value of property within 500 feet, and a majority
indicated the same would occur within 500 to 1,000 feet. 80% of surveyed community
organizations responded that adult entertainment uses negatively impact the community
in some way,, and almost 50% of surveyed businesses responded that they believed their
businesses would be negatively affected if more adult uses were to locate nearby.
Community residents expressed the strongest negative reactions to adult uses, and
expressed fear of the consequences of the proliferation and concentration of adult uses in
neighborhood- oriented shopping areas and of a deterioration in the quality of urban life,
even in study areas where it could not be readily determined that negative impacts were
being felt. Attitudinal data of the surveys are significant even where the negative
impacts are currently difficult to measure, since negative perceptions associated with an
0
area can lead to disinvestment in residential neighborhoods and economic decline
because of a tendency to avoid such shopping areas. The analysis of criminal complaint
data and property assessed valuation data was less conclusive than the surveys.
RECOMMENDATIONS: The study concludes that it is appropriate to regulate
adult entertainment establishments differently from other commercial establishments.
Because of the negative impacts of adult uses in concentration, restrictions on the
location of adult uses in proximity to residential areas, to houses of worship, to schools
and to each other should be considered in developing adult use regulations.
11. LAND USE STUDY: Newport News, Virginia
DATED: March 1996
12. LAND USE STUDY: Oklahoma City, Oklahoma
DATED: March 3, 1986
OVERVIEW: This study contains the results of a survey of 100 Oklahoma City
real estate appraisers. Appraisers were given a hypothetical situation and a section to
comment on the effect of sexually oriented businesses in Oklahoma City. The
hypothetical situation presented a residential neighborhood bordering an arterial street.
with various commercial properties which served the area. A building vacated by a
hardware store was soon to be occupied by an "adult" bookstore. No other sexually
oriented businesses were in the area and no other vacant commercial space existed. With
less than a one month response time, 34 completed surveys were received by the city.
FINDINGS: 32% of the respondents said that such a bookstore within one block
of the residential area would decrease home values by at least 20 %. Overwhelmingly,
respondents said an "adult" bookstore would negatively effect other businesses within
one block (76 %). The level of depreciation is greater for residences than businesses.
The negative effects on property values drop sharply when the sexually oriented business
is at least three blocks away. In the subjective portion, 85% of the respondents noted a
negative impact on sexually oriented businesses on Oklahoma City. Frequent problems
cited by the appraisers included the attraction of undesirable clients and businesses,
safety threats to residents and other shoppers (especially children), deterrence of home
sales and rentals, and immediate area deterioration (trash, debris, vandalism).
CONCLUSIONS: Oklahoma City's findings supported results from other
national studies and surveys. Sexually oriented businesses have a negative effect on
property values, particularly residential properties. The concentration of sexually
oriented businesses may mean large losses in property values.
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13. LAND USE STUDY: Phoenix, Arizona
DATE: May 25, 1979
OVERVIEW: The study examines crime statistics for 1978 comparing areas
which have sexually oriented businesses with those that do not. The results show a
marked increase in sex offenses in neighborhoods with sexually oriented businesses, with
modest increases in property and violent crimes as well.
Three study areas (near locations of sexually oriented businesses) and three
control areas (with no sexually oriented businesses) were selected. The study and control
areas were paired according to the number of residents, median family income,
percentage of non -white population, median age of population, percentage of dwelling
units built since 1950, and percentage of acreage used for residential.and no- residential
purposes.
CRIME: Three categories of criminal activity were included in the study:
property crimes (burglary, larceny, auto theft), violent crimes (rape, murder, robbery,
assault), and sex crimes (rape, indecent exposure, lewd and lascivious behavior, child
molestation).
Average results from all three study /control areas, sex offenses were 506% greater
in neighborhoods where sexually oriented businesses were located. (In one study area,
sex crimes were more than 1,000% above the corresponding control area.) Property
crimes were 43% greater. Violent crimes were only slightly higher (4 1/6). Even
excluding indecent exposure arrests (the most common sex offense), other sex crimes
(rape, lewd and lascivious behavior, child molestation) in the study areas.were 132%
greater than control areas.
REQUIREMENTS: The Phoenix ordinance requires sexually oriented businesses
to located at least 1,000 feet from another sexually oriented business and 500 feet from a
school or residential zone. Approval by the city council and area residents can waive the
500 foot requirement. A petition which is signed by 51 % of the residents in the 500 foot
radius who do not object must be filed and verified by the planning director.
14. LAND USE STUDY: Seattle, Washington
DATED: March 2-4,1989
OVERVIEW: The report concerns a proposed amendment to add topless dance
halls to existing land use regulations for "adult entertainment establishments." Seattle
had eight such dance halls (termed "adult cabarets "), six established since 1987. The
study relies on reports from a number of cities, including Indianapolis, Los Angeles,
Phoenix, Austin and Cleveland.
I1
FINDINGS: The increased number of cabarets resulted in citizen complaints,
including phone calls, letters (from individuals and merchant associations), and several
petitions with hundreds of signatures. Protests cited decreased property values; increased
insurance rates; fears of burglary, vandalism, rape, assaults, drugs, and prostitution; and
overall neighborhood deterioration. The report notes that patrons of these cabarets most
often are not residents of nearby neighborhoods. Without community identity, behavior
is less inhibited. Increased police calls to a business, sirens, and traffic hazards from
police and emergency vehicles are not conducive to healthy business and residential
environments.
RECOMMENDATIONS: Since city zoning policy is based on the compatibility
of businesses, the report recommends that the cabarets locate in the same zones as "adult
motion picture theaters." This plan allows about 130 acres for such businesses to locate
throughout the city.
15. LAND USE STUDY: Times Square (New York City), New York
DATE: April 1994
OVERVIEW: This study commissioned by the Tunes Square Business
Improvement District ( "TSBID") evaluates the effect of adult use businesses on the city's
TSBID, and more specifically, on the areas within the TSBID where such businesses are
densely concentrated. The study combined analysis of available data on property values
and incidence of crime with a demographic and commercial profile of the area to
determine the relationship between the concentration of adult use businesses and
negative impacts on businesses and community life. The study also included 54
interviews conducted with a broad range of diverse business and real estate enterprises,
including major corporations, smaller retail stores, restaurants, theatres and hotels, as
well as Community Boards, block associations, activists and advocates, churches,
schools and social service agencies. -
REAL ESTATE: This part of the study compared the assessed property values
over time, and the rate of change, of four study blocks and contrasting control blocks
where no adult use businesses existed. This analysis also compared the study and control
blocks' assessed valuation to that of the TSBID, Manhattan, and the city as a whole. The
rate of increase of the total actual assessed values of the study blocks between 1985 and
1993 was less than the rate of increase for the control blocks during the same period. An
assessment of the study blocks also revealed that the-rates of increases in assessed value
for properties with adult establishments was greater than the increase for - properties on
the same blockfront without adult establishments (possibly because of greater rents paid
by some adult establishments). A high official in the Department of Finance indicated
that the presence of adult use businesses adversely affects neighboring properties since
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such presence is factored into the locational aspect of the appraisal formula.
CRIME: This part of the study compared the number of criminal complaints over
a three month period for the study blocks and the control blocks. There were about twice
as many criminal complaints for the study blocks as the control blocks. There was a
reduction in criminal complaints the further away from the study block area of dense
concentration of adult use businesses. The heaviest incidence of prostitution arrests also
occurred in the study block area of dense concentration of adult use businesses. The
study also noted that police statistics showed a decrease in crime in Times Square for the
past five year period, which paralleled the decrease in the number of adult use
businesses.
INTERVIEWS: Property and business owners expressed the view that adult use
businesses have a negative effect on the market or rental values of businesses located in
their vicinity, and emphasized the negative effects of a concentration of such businesses
in affecting the overall image of the area. Restaurant owners expressed that the presence
of adult use businesses was not good for their businesses, created a perception that the
area was unsavory, made it difficult to book corporate parties, and negatively affected
their businesses because of the flamboyant advertising. Community residents and
organizations expressed their belief that adult use businesses attract loiterers, drug
dealers, -and prostitutes, and result in increased instances of criminal activity.
16. LAND USE STUDY: Tucson, Arizona
DATED: May 1, 1990
OVERVIEW: This report is a memorandum from Police Department
Investigative Services to the City Prosecutor describing events and activities at "adult
entertainment bookstores and establishments" that support stronger ordinances.
Investigation had been in progress since 1986 following numerous complaints of illegal
sexual activity and unsanitary conditions.
FINDINGS: Officers found a wide variety of illegal sexual conduct at all adult
businesses. At virtually every such business, employees were arrested for prostitution or
obscene sex shows. Dancers were usually prostitutes where, for a price, customers could
observe them performing live sex acts. At several businesses, customers were allowed
inside booths with dancers and encouraged to disrobe and masturbate. Many times,
dancers would require customers to expose themselves before they would perform.
Underage dancers were found, the youngest being a 15 year old female.
Within peep booths, officers found puddles of semen on the floor and walls. If
customers had used tissues, these were commonly on the floor or in the hallway, On two
occasions, fluid samples were collected from the booths. In the first instance, 21 of 26
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samples (81 %) tested positive for semen. In the second sampling, 26 of 27 fluid samples
(96 %) tested positive for semen. `.`Glory holes" in the walls between adjoining booths
facilitated anonymous sex acts between men.
RECOMMENDATIONS: (1) The bottom of the door in peep booths must be at
least 30 inches from the floor so that an occupant can be seen from waist down when
seated; (2) the booth cannot be modified nor can a chair be used to circumvent the
visibility of the client; (3) employee licensing that includes a Police Department
background check; and (4) in the event of a denied or revoked license, the requirement of
a hearing before any action is taken.
17. LAND USE STUDY: Whittier, California
DATE: January 9, 1978 _
OVERVIEW: After experiencing a rapid growth of sexually oriented businesses
since 1959, the Whittier City Council commissioned a study of the effects of businesses
on the adjacent residential and commercial area. At the time of the study, Whittier had
13 such businesses: six model studios, four massage parlors, two bookstores, and one
theater. Utilizing statistics, testimonies, and agency reports, the study compared two
residential areas and four business areas over a span of ten years (1968 - 1977). One
residential area was near the largest concentration of sexually oriented businesses, the
other had no commercial frontage but was chosen because of similar street patterns, lot
sizes and number of homes. For businesses, Area 1 had six sexually oriented businesses,
Area 2 had one, Area 3 had three, and Area 4 had none. 1973 was selected as the year to
compare before/after effect of these businesses. Two chief concerns cited in the report
are residential/business occupancy turnover and increased crime.
OCCUPANCY TURNOVER: After 1973, 57% of the homes in the sexually
oriented business area had changes of occupancy, compared to only 19% of the non-
sexually oriented business area. Residents complained of "excessive noise, pornographic
material left laying about, and sexual offenders (such as exhibitionists) venting their
frustrations in the adjoining neighborhood." Citizens also expressed concern about
drunk drivers coming into the area. Business Area 1, with the highest concentration of
sexually oriented businesses (6), experienced a 134 %, increase in annual turnover rate.
Area 3, with three adult businesses at one location, showed a 107% turnover rate. Area 2
(with one adult business) had no measurable change and Area 4 (with no commercial or
sexually oriented businesses) experienced a 45% decrease in turnover from similar
periods.
CRIME: The city council looked at the two residential, areas for the time periods
of 1970 -73 (before sexually oriented businesses) and 1974 -77 (after such businesses). in
the sexually oriented business area, criminal activity increased. 102% (the entire city had
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only an 8.3% increase). Certain crimes skyrocketed (malicious mischief up 700 %; all
assaults up 387 %; prostitution up 300 %). All types of theft (petty, grant, and auto),
increased more than 120% each. Ten types of crime were reported of the first time ever
in the 1974 -77 period.
RECOMMENDATIONS: The council's report recommended a disbursement
type ordinance that prohibits sexually oriented businesses closer than 500 feet to
residential areas, churches, and schools. Distances between such businesses was
recommended at 1,000 feet. In addition, the study proposed a 1,000 foot separation from
parks because of their use by citizens after normal working hours. Sexually oriented
businesses would be given an 18.3 6 month amortization period (if the change involved
only stock in trade, a 90 days period was recommended).
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Police Chief Bejarano
Re: Secondary Impacts of Sexually Oriented Businesses
City of Chula Vista
City Council Meeting
November 1, 2012
By way of background once again I do have over 30 years of law enforcement experience
and currently I have and currently serve in a number of leadership positions at the local,
state and national level and most importantly with the issue present here tonight I do have
vice related experience as an investigator with the City of San Diego, was assigned to
vice investigations for I believe about 2 years and part of my responsibilities were the
investigation, the inspections of police regulated businesses in the City of San Diego
including ABC licensed businesses and as an investigator for 2 years. And then I was
also the vice commander at the lieutenant rank overseeing vice investigations throughout
the City of San Diego and most of these involved sexually oriented businesses and once
again ABC regulated businesses throughout the City of San Diego.
As the Police Chief of the City of San Diego, I was also the final decision maker
regarding the issuance of permits for business owners and employees at sexually oriented
businesses. One of the issues that I saw as an investigator, as a vice commander, as a
chief and my continued discussions with chiefs throughout the state and throughout the
nation and most recently I have had two long conversations with current management and
investigators with the City of San Diego, the secondary effects mentioned by Mrs. Fox
are still in place and a major concern for any community that has these type of adult
entertainment businesses. And we see either a direct connection or an indirect connection
or sometimes even serve as a magnet for prostitution related activities, direct use, lewd
activity in and around the facility, near -by businesses, for example if you have a low
budget motel there is a tendency also as far as increased calls for service, narcotics,
prostitution, etc. There is normally an increase in calls for service involving traffic and
noise complaints and it is also important obviously in reviewing this document here
prepared by Mrs. Fox and a lot of input by both law enforcement and City Attorney in
being very familiar with the ordinance in San Diego and looking at other ordinances this
is probably the most comprehensive ordinance.
I have seen as we try to balance the public safety concerns and also understanding and
respecting the constitutional rights of all the parties involved, including the business
owner, employees and customers who might frequent that type of business so. It is also
important to know what these investigating and inspecting these type of adult
entertainment businesses they are very labor intensive, require a lot of police resources, a
lot of covert operations, overt investigations and a presence in and around the vicinity
and where you have sexually oriented businesses and every department including ours as
Attachment 4
you know for the last years we have seen a reduction in staffing so we are limited as far
as how many resources we can actually apply to ensure the public safety of all the parties
that are seen or using these types of businesses.
And again by focusing on these secondary effects and having a sound ordinance, again
respecting the constitutional rights, that really gives law enforcement the tool to
hopefully eliminate, reduce, mitigate a lot of these secondary effects that we could see in
our City, I saw in San Diego and we see in most cities where you have adult
entertainment businesses.
2270430.1 \1675.002
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DAVID BEJARANO
Chief, Chula Vista P.D.
EXPERIENCE
CITY OF CHULA VISTA, POLICE DEPARTMENT.
On Tuesday, September 1, 2009 David Bejarano was sworn in as the City of Chula Vista's 23rd Chief of Police.
Chief Bejarano leads a department of 240 sworn law officers and 90 civilian employees, plus more than a hundred
volunteers. He oversees a budget of 44 million dollars and provides law enforcement services to a community of
240,000 people, the second largest city in San Diego County. Chula Vista is home to the 2009 Little League World
Series Champion Park View Little League, U.S. Olympic Training Center, Cricket Wireless Amphitheater,_ the
Chula Vista Nature Center, J Street Harbor, the Third Avenue Village and Knott's Soak City. Downtown Chula
Vista hosts a number of cultural events; including its Cinco de Mayo celebration, Lemon Festival and Holiday
Starlight Parade.
INTERNATIONAL SECURITY CONSULTANT/BUSINESS OWNER
Based on Mr. Bejarano's extensive experience and expertise in dealing with trans - national crime, he has partnered in
the past with several security organizations to provide'security consulting services for foreign owned companies
operating in Mexico. Security services provided include: site security assessments, executive protection, security
director /crisis management training, and security backgrounds. Bejarano is also a Founder/Director of Vibra Bank,
a community bank based in Chula Vista, CA.
UNITED STATES MARSHALS SERVICE
On April 10, 2003, Mr. Bejarano was appointed the United States Marshal for the Southern District of California, by
President George W. Bush. The Marshals Service is the nation's oldest and most versatile Federal law enforcement
agency, involved in virtually every law enforcement initiative.
Mr. Bejarano chaired the California Border Alliance Group, a program initiated by the President's Office of the
National Drug Control Policy known as HIDTA (High Intensity Drug Trafficking Area) and the Southwest Border
HIDTA Executive Board. The HIDTA program provides infrastructure support for the investigation of international
trafficking organizations. Under Marshal Bejarano's leadership the San Diego County Regional Fugitive Unit was
expanded by 50 %. Mr. Bejarano also served on various national U.S. Marshals Service Policy Committees.
CITY OF SAN DIEGO, POLICE DEPARTMENT
Chief Bejarano joined the San Diego Police Department (SDPD) in 1979 and on April 26, 1999, was sworn in as
San Diego's 34"' Chief of Police. Chief Bejarano provided progressive leadership for 2000 sworn officers, 700
civilian support personnel and 1,000 police volunteers. Chief Bejarano was responsible for an annual budget of
$262 million and for providing police services to over 1.3 million persons. The City of San Diego was recognized at
state and national levels as one of the safest large cities in the U.S. and for successfully hosting major national
events such as Super Bowl XXX1I and XXXVIII, and the Republican National Convention. During his tenure with
the San Diego Police Department, he had several vice related assignments, including as a detective investigating
unlawful activity at sexually oriented businesses; was the Vice Commander responsible for officers who conducted
such investigations; and, as Chief of Police, he was responsible for the licensing of such businesses:
CAREER HIGHLIGHTS
Mr. Bejarano established one of the nation's first full -time Elder Abuse Units and Drag Racing Enforcement Units;
created a partnership with the City Attorney's Office to establish the nationally recognized Family Justice Center
(one -stop shop for addressing domestic violence); and also created file Neighborhood Prosecution Program.
Under Chief Bejarano's tenure, SDPD was recognized as the leader in expanding the use of less - than- lethal
equipment, addressing racial profiling and enhancing Neighborhood Policing. Mr. Bejarano is a nationally
recognized expert in police /community partnerships, major event security planning, and trans - national crime.
COMMUNITY/PROFESSIONAL SER VICE A WARDS
Over the course of his public service and currently, he serves on a number of community based organizations and
local and national law enforcement organizations. Additionally, he was appointed by the Governor of California to
Attachment 5