CC - Item 2B - Interim Urgency Ord. No 878 Establishing a Moratorium on Adult Businesses in the CityROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: JEFF ALLRED, CITY MANAGEFj ~ff~(if'6
DATE: JUNE 30, 2009
SUBJECT: INTERIM URGENCY ORDINANCE NO. 878 ESTABLISHING A MORATORIUM,
ON ADULT BUSINESSES IN THE CITY
SUMMARY
The City of Rosemead currently has the ability to regulate adult businesses through Ordinance
No. 753 which was adopted in June 1995. However, this ordinance has become outdated as
there have been several changes in both state and federal law related to adult businesses. In
an effort to provide correct and legal information and to, help process adult business
applications, the City's ordinance needs to be updated to reflect these changes in law.
Such factors warrant City Council consideration of an interim urgency ordinance which would
establish a temporary moratorium on adult businesses in Rosemead. Approval of Ordinance
No. 878 (Attachment A) by a four-fifths vote would prohibit approval of any adult business
applications for a period of 45-days. During the 45-day period, the City's ordinance would be
updated and presented to the City Council for consideration. If it takes staff and the City
Attorney more than 45-days to update the ordinance, the City Council has the option of
extending the moratorium for an additional period of time.
Staff Recommendation
Staff recommends that the City Council adopt Interim Urgency Ordinance No. 878 entitled "An
interim urgency ordinance of the City Council of Rosemead, California, establishing a
moratorium on adult businesses in the City."
LEGAL REVIEW
This staff report has been reviewed and approved by the City Attorney.
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
S b d y:
Br n aeki
Community Development Director
Attachment A - Interim Urgency Ordinance No. 878 ITEM NO.
APPROVED FOR CITY COUNCIL AGENDA:
ORDINANCE NO. 878
AN URGENCY INTERIM ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF ROSEMEAD, CALIFORNIA, ESTABLISHING A MORATORIUM
ON ADULT BUSINESSES IN THE CITY '
THE CITY COUNCIL OF THE CITY OF ROSEMEAD, CALIFORNIA, FINDS AS
FOLLOWS:
SECTION 1. FINDINGS. Based on information contained in the record, the City
Council makes the following findings:
A. Special regulation of adult businesses is necessary to ensure that their
adverse secondary effects will not contribute to an increase in crime rates or to the
deterioration of the areas in which they are located or surrounding areas. The need for
such special regulations is based upon the recognition that adult businesses have serious
objectionable operational characteristics, particularly when several of them are
concentrated under certain circumstances or located in direct proximity to sensitive uses
such as residences, parks, schools and churches, thereby having a deleterious effect
upon the adjacent areas. One of the purposes and intents of these special regulations is
to prevent the concentration of adult businesses and thereby prevent such adverse
secondary effects.
B. The City adopted an ordinance regulating adult businesses (referred to in
the ordinance as "adult-oriented businesses") in 1995 ("Ordinance No. 753"). The
ordinance has not been updated since that time.
C. Since the adoption of Ordinance No. 753, there have been a number of
studies concerning the adverse secondary side effects of adult businesses in other cities,
including but not limited to: Alhambra, California (2007); Industry, California (2004);
Dallas, Texas (1997); Houston, Texas, (1997); and Newport News, Virginia (1996).
These studies supplement the studies on which the City relied in 1995. It is necessary for
the City to review the content of these studies and to determine whether they continue to
provide convincing evidence that:
1. There is substantial evidence that an increase in crime tends to
accompany, concentrate around, and be aggravated by adult businesses,
including but not limited to an increase in the crimes of narcotics distribution and
use, prostitution, pandering, and violence against persons and property; and
2. New or modified regulations for adult businesses should be
developed to prevent deterioration or degradation of the vitality of the community
before the problem exists, rather than waiting for problems to be created.
D. The City Council is mindful of legal principles relating to regulation. of adult
businesses, and the City Council does not intend to suppress or infringe upon any
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expressive activities protected by the First Amendment of the United States and
California Constitutions but instead desires to enact at a reasonable time, place, and
manner regulations that address the adverse secondary effects. of adult businesses.
The City Council further recognizes that, subsequent to the adoption of Ordinance No.
753, the United States Supreme Court has issued a number of decisions regarding local
regulation of adult businesses, including but not limited to: City of Los Angeles v.
Alameda Books, 535 U.S. 425, 122 S. Ct. 1728 (2002); and City of Erie v. Pap's A.M.
("Kandyland'), 529 U.S. 277, 120 S.Ct. 1382 (2000). Further, the United Stated Court
of Appeals for the Ninth Circuit has issued a number of decisions during that time,
including but not limited to: Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005);
Dream Palace v. County of Maricopa, 384 F.3d 990 (9th Cir. 2004); Diamond v. City of
Taft, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531 U.S. 1072 (2001); Isbell v. City of
San Diego, 258 F.3d 1108 (9th Cir. 2001); Young v. City of Simi Valley, 216 F.3d 807
(9th Cir. 2000), cert. denied 531 U.S. 1104 (2001); Lim v. City of Long Beach, 217 F.3d
1050 (9th Cir. 2000), cert. denied 121 S.Ct. 1189 (2001); Alameda Books v. City of Los
Angeles, 222 F.3d 719 (9th Cir. 2000), cert. granted 121 S.Ct. 1223 (2001); Baby Tam
& Co., Inc. v. City of Las Vegas (`Baby Tam 1'), 154 F.3d 1097 (9th Cir. 1998); Baby
Tam & Co., Inc. v. City of Las Vegas (`Baby Tam ll'), 199 F.3d 1111 (9th Cir. 2000);
Baby Tam & Co., Inc. v. City of Las Vegas (`Baby Tam Ill'), 247 F.3d 1003 (9th Cir.
2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); and
Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053
(2000). And there have been several cases in California state courts during that time,
including but not limited to: Krontz v. City of San Diego, 136 Cal.AppAth 1126 (2006);
Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Board
of California ("Vicary'), 99 Cal.AppAth 880 (2002); and Tily B., Inc. v. City of Newport
Beach, 69 Cal.AppAth 1 (1998).
E. The City needs to study the foregoing cases and the rights and limitations
set forth therein in order to amend Ordinance No. 753 and ensure that the rights of
owners of adult businesses are properly balanced with the limitations on those
businesses that are put in place to protect against the potential harmful secondary
effects of the businesses.
F. There exist. possible harmful effects on children and minors exposed to the
effects of adult businesses and the City Council 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 understands that these cases 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.AppAth 1075 (1995). These cases and the Penal Code provisions
must be studied to properly balance the rights of owners of adult businesses and adult-
oriented businesses with the limitations on those businesses.
G. Location criteria alone do not adequately protect the health, safety, and
general welfare of the citizens of the City, and thus certain requirements with respect to
the ownership, operation and licensing of adult businesses are in the public interest. In
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addition to the findings and studies conducted in other cities regarding increases in
crime rates, decreases in property values and the blighting of areas in which such
businesses are located, the City Council is aware of the facts recited in the case of Kev,
Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), regarding how live adult
entertainment results in secondary effects such as prostitution, drug dealing, and other
law enforcement problems. The City needs to study these facts to properly balance the
rights of owners of adult businesses and adult-oriented businesses with the limitations
on those businesses.
H. Evidence indicates that some dancers, models, performers, and other
persons who publicly perform specified sexual activities or publicly display specified
anatomical areas in adult businesses (collectively referred to as "performers") have
been found to engage in sexual activities with patrons of adult businesses on the site of
the adult business. Further, performers employed by adult 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. Some performers at adult
businesses have been found to engage in acts of prostitution with patrons of the
establishment. 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. The City
has a substantial interest in adopting regulations that will reduce the possibility for the
occurrence of prostitution and unlawful sex acts at adult businesses in order to protect
the health, safety, and well-being of its citizens.
1. There is a specific danger from the sexually transmitted disease AIDS,
which is currently irreversible and fatal. In addition, the City is also concerned with
preventing the spread of other sexually transmitted diseases such as Syphilis,
Gonorrhea and Chlamydia.
J. Recognizing the negative secondary effects generated by live adult
entertainment, there have been a number of court decisions since the adoption of
Ordinance No. 753 upholding distance limitations between performers and patrons,
prohibitions against physical contact between performers and patrons, and precluded
direct exchange of monies between performers and patrons at adult businesses that
provide live entertainment, including, but not limited to: Gammoh v. City of La Habra,
395 F. 3d 1114 (91h Cir. 2005); Tily B. v. City of Newport Beach (1999) 69 Cal.AppAth 1;
and Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998). These decisions need to
be studied to properly balance the rights of owners of adult businesses with the
limitations on those businesses.
K. Operating standards 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 to help assure that such operators and businesses comply with
reasonable regulations related to such requirements to minimize and control problems
associated with such businesses and thereby protect the health, safety, and welfare of
City 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 operating standards currently in
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place need to be reviewed in light of the legal precedents and studies cited above to
properly balance the rights of owners of adult businesses with the limitations on those
businesses.
L. The City needs to review and possibly revise its adult business licensing
procedures and operating regulations. The establishment of an adult business
regulatory licensing process, operating standards for adult businesses and performer
licensing provisions are legitimate and reasonable means of ensuring that adult
business operators have specific guidelines with respect to the manner in which they
can operate an adult business, that applications for adult business regulatory licenses
and performer licenses are handled fairly and expeditiously; and that operators of and
performers at adult businesses comply with the City's regulations so as to mitigate the
recognized adverse secondary impacts of adult businesses.
M. It may be necessary to amend the Rosemead Municipal Code in order to
determine the appropriate zoning districts and locations for potential adult businesses
and establish the permitting and operating standards for adult businesses, and establish
a licensing process for adult business performers. The public health, safety and welfare
of the City and its residents require the study of adult businesses and the enactment of
an ordinance and operating standards for adult businesses in order to:
1. Mitigate and reduce the judicially recognized potential adverse
secondary effects of adult 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 adult businesses; and
3. Protect the peace, welfare and privacy of persons who own,
operate and/or patronize adult businesses.
N. Prior to making any amendments to the City's Municipal Code, it is
necessary and appropriate to retain the status quo in order to protect against the
potential adverse secondary effects of adult businesses.
SECTION 2. IMPOSITION OF MORATORIUM. The City Council orders as follows:
A. In accordance with the authority granted the City of Rosemead under
Government Code § 65858(a), and pursuant to the findings stated herein, for a period of
45 days from the date of adoption of this Ordinance:
1. No adult business may be established or operated in any zone of
the City.
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2. No use permit, site development permit, tentative map, parcel map,
variance, grading permit, building permit, building plans, zone change, business
license or other applicable approval will be accepted, approved or issued for the
establishment or operation of an adult business.
B. . As used in this Ordinance, "adult business" is defined as per Section
17.80.020 of the City's Municipal Code, and the definition in this ordinance incorporates
by reference all other terms defined in that Section.
SECTION 3. EFFECTIVE DATE AND DURATION.
Pursuant to Government Code § 65858(a) this Ordinance shall take effect
immediately but shall be of no further force and effect forty-five (45) days from its date
of adoption, unless the City Council, after notice and public hearing as provided under
Government Code § 65858(a) and adoption of the findings required by Government
Code § 65858(c), subsequently extends this Ordinance.
SECTION 4. REPORT ON INTERIM MORATORIUM.
Pursuant to Government Code § 65858(d), 10 days prior to the expiration or any
extension of this Interim Ordinance, the City Council will issue a written report
describing the measures taken to alleviate the conditions which led to the adoption of
this Interim Ordinance.
SECTION 5. PUBLICATION.
The Mayor shall sign and the City Clerk shall certify to the passage and adoption
of this Ordinance and shall cause the same to be published and posted pursuant to the
provisions of law in that regard and this Ordinance shall take effect immediately and
shall be in effect for a period of 45 days.
INTRODUCED at the special meeting of Rosemead City Council on June 30, 2009.
PASSED, APPROVED AND ADOPTED this day of 2009.
Margaret Clark, Mayor
ATTEST:
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Gloria Molleda, City Clerk
APPROVED AS TO FORM:
Joseph M. Montes, City Attorney
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