(A) Sexually oriented businesses in the incorporated area of the city require special supervision from public safety and health agencies of the county in order to protect and preserve the health, safety, and welfare of the patrons of the businesses as well as citizens of the city.
(B) The City Council and staff have conducted an extensive review of land use studies concerning the secondary effects of sexually oriented businesses in other cities, including, but not limited to: Garden Grove, California (1991); Phoenix, Arizona (1986); Minneapolis, Minnesota (1980); Houston, Texas (1983); Indianapolis, Indiana (1984); Amarillo, Texas (1977); Los Angeles, California (1977); Cleveland, Ohio (1977); Austin, Texas (1986): Seattle, Washington (1989); Oklahoma City, Oklahoma (1986); Beaumont, Texas (1982); and Whittier, California (1978).
(C) From review of other cities’ studies and testimony from its citizens there is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both existing businesses around them and the surrounding residential areas adjacent to them, causing, among other adverse secondary effects, increased crime and downgrading of property values.
(D) It is recognized that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are operating in close proximity to each other, thereby contributing to crime, lower property values, urban blight, and downgrading of the quality of life in the adjacent area.
(E) The City Council finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of casual nature.
(F) Increased crime and unhealthful conduct tend to accompany, concentrate around, and be aggravated by sexually oriented businesses, including, but not limited to, prostitution, pandering, exposing minors to harmful materials, possession and distribution of obscene materials and child pornography, possession and sale of controlled substances, and violent crimes against persons and property.
(G) Concern over sexually transmitted diseases, including AIDS, is a legitimate health concern of the city, which demands reasonable regulations of sexually oriented businesses in order to protect the health and well-being of the citizens.
(H) The City Council has considered, in part, each of the following matters:
(1) Areas within close walking distance of single- and multiple-family dwellings should be free of sexually oriented business uses;
(2) Areas where children could be expected to walk, patronize, or frequent to be free of sexually oriented business uses;
(3) Sexually oriented business uses should be located in areas of the city which are not in close proximity to residential uses, churches, parks, or other public facilities and schools;
(4) The image of the city as a pleasant, attractive place to reside will be adversely affected by the presence of sexually oriented business uses in close proximity to residential land uses, churches, parks and other public facilities, and schools;
(5) Sexually oriented business land use should be regulated by zoning to separate it from other dissimilar uses just as any other land use should be separated from uses with characteristics different from itself;
(6) Residents of the city, and persons who are nonresidents but use the city for shopping and other commercial needs, will move from the community or shop elsewhere if sexually oriented business land uses are allowed to locate in close proximity to residential uses, churches, parks and other public facilities, and schools;
(7) Merchants in the commercial area of the city are concerned about the adverse impact and the character and quality of the city in the event that sexually oriented business land uses are located within close proximity to residential uses, churches, parks and other public facilities, and schools, and that the locations will reduce retail trade to commercial uses in the vicinity, thus reducing property values and tax revenues to the city; and that the adverse effect on property values and business would cause the loss to some commercial districts within the city leading to further deterioration of the commercial quality of the city; and
(8) No evidence has been presented to show that location of sexually oriented businesses within the city will improve the commercial viability or quality of life of the community.
(I) Zoning, licensing, and other police power regulations are legitimate reasonable means of accountability to ensure that the operators of sexually oriented businesses comply with reasonable regulations and are located in places which minimize the adverse secondary effects which naturally accompany the operation.
(J) The city recognizes the possible harmful effects on children and minors exposed to the effects of such businesses and the deterioration of respect for family values, and the avoidance of such businesses which necessitate children walking through or visiting in the immediate neighborhood of the businesses.
(K) The City Council finds that there would be a deterioration in the quality of businesses which choose to operate in and around the sexually oriented businesses.
(L) The City Council desires to minimize and control these adverse secondary effects and thereby protect the health, safety, and welfare of the citizens; protect the citizens from increased crime; preserve the quality of life; preserve the property values and the character of surrounding neighborhoods and businesses; deter the spread of urban blight; and protect against the threat to health from the spread of communicable and social diseases.
(M) The City Council has considered the decisions of the United States Supreme Court regarding local regulation of sexually oriented businesses, including, but not limited to, Young v. American Mini-Theatres, Inc., 427 U.S. 50 (1976) reh. denied 429 U.S. 873; Renton v. Playtime Theatres, 475 U.S. 41 (1986) reh. denied 475 U.S. 1132; FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); and Barnes v. Glen Theatre, 501 U.S. 560 (1991); National City v. Wiener, et al, 3 Cal.4th 832 (1993); and Topanga Press, Inc., et al v. City of Los Angeles, 939 F.2d 1524 (1993).
(N) The City Council has determined that locational criteria alone do not adequately protect health, safety, and general welfare of the people of the city and thus certain requirements with respect to the ownership and operation of sexually oriented businesses is in the public interest.
(O) The City Council, consistent with sale and consumption of alcohol and outside advertising limitations, further finds that restricted hours of operation will further prevent the adverse secondary effects of sexually oriented business.
(P) It is not the intent of this chapter to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance which addresses the adverse secondary effects of sexually oriented businesses.
(Q) It is not the intent of the City Council to condone or legitimize the distribution of obscene material, and the Council recognizes that state law prohibits the distribution of obscene materials and expects and encourages state enforcement officials to enforce state obscenity statutes against the illegal activities in the city.
(R) The City Council and staff find that the live entertainment presented by some sexually oriented business establishments involves a considerable amount of bodily contact between patrons and performers, including physical contact while giving and receiving gratuities, hugging, kissing, and sexual fondling of performers and patrons. Many sexually oriented businesses offer “sofa/couch” or “straddle” dancing. In these “dances,” the performers sometimes do things such as sit in the patron’s lap; place their breasts against the patron’s face; while physical contact is maintained, gyrate in such a manner as to simulate sexual intercourse; allow patrons to suckle their breasts; breathe heavily into a patron’s groin area; and bite and gnaw at, as well as fondle, the genitals of patrons. Performers, both during the semi-private dances and on a stage, have pulled patrons’ faces into their vaginal areas, including a “whipped cream” dance wherein patrons were allowed to spoon feed themselves with whipped cream that had been spread on the breasts and vaginal and anal areas of the performer. In other instances, males have placed a peeled banana between their legs while female performers have eaten the banana. Some of this conduct would violate the State Penal Code, which prohibits, among other things, the public fondling of genitals. Although no actual sexual intercourse may be involved, contact titillation provided in exchange for a gratuity is tantamount to prostitution.
(S) The City Council and staff find that a number of courts have upheld distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and direct payment and receipt of gratuities between performers and patrons at sexually oriented business establishments that provide live entertainment: BSA, Inc., v. King County, 804 F.2d 1104, 1110-11 (9th Cir. 1986) (six feet); Kev, Inc. v. Kitsap County, 793 F.2d 1091 (9th Cir. 1986) (ten feet); Zanganeh v. Hymes, 844 F. Supp. 1087, 1091 (D.Md. 1994) (six feet); T-Marc, Inc. v. Pinellas County, 804 F. Supp. 1500, 1506 (M.D.Fla. 1992) (three feet), DLS, Inc., v. City of Chattanooga, 894 F. Supp. 1140 (E.D. Term. 1995) (six feet and prohibiting direct payment and receipt of gratuities); Parker v. Whitfield County, 463 S.E.2d 116 (Ga. 1995) (prohibiting tipping and contact between dancers and patrons); and Hang On, Inc., v. City of Arlington, 65 F.3d 1243 (5th Cir. 1995) (aff’d prohibition on touching or any contact between dancers and patrons). The City Council and staff have also reviewed a letter by the City of Newport Beach, California, regarding “The Mermaid Application,” dated 4-12-1996, containing a notice or revocation and refusal to renew a sexually oriented business permit based on repeated violations of the Newport Beach Municipal Code. The violations include distance limitations and direct payment and receipt of gratuities between performers and patrons during physical contact, including sexual contact.
(T) The City Council and staff recognize that preventing prostitution and the spread of sexually transmitted diseases are clearly within its police powers: Southeastern Promotions, Inc., v. Conrad, 341 F. Supp. 465, 477 (E.D. Tenn. 1972), rev’d on other grounds, 420 U.S. 546 (1975). The City Council and staff believe that prohibiting physical contact between performers and patrons at a sexually oriented business establishment, prohibiting performers from soliciting payment of gratuities from patrons, and the direct payment of gratuities to performers by patrons are a reasonable and effective means of addressing these legitimate governmental interests. It is not the intent of the city to place any impermissible burden on any constitutionally protected expression or expressive conduct by the enactment or enforcement of these regulations.
(Ord. 2001-8, passed 9-12-2001)