HomeMy WebLinkAbout09/04/2012 07 Adult Entertainment; Adoption of Findings of Fact Supporting a Six-Month Moratorium; Extension of Moratorium • �..
/ems n
k
I3USINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
. AGENDA STATEMENT
Item No. 7
For Meeting of: September 4, 2012
ITEM TITLE: Public Hearing and Resolution adopting proposed Findings
of Fact supporting enactment of moratorium regarding
adult entertainment and adult entertainment businesses.
SUBMITTED BY: Jeff Cutter, City Attorney
CONTACT Mark Kunkler, Senior Assistant City Attorney /575 -3552
PERSON /TELEPHONE:
SUMMARY EXPLANATION:
The City Council adopted Ordinance No. 2012 -26 on July 17, 2012 imposing a moratorium
on receipt, processing and issuance of licenses, permits and approvals for adult
entertainment and adult entertainment business uses pending development of a
comprehensive code regulating such uses. Under state law, a public hearing must be held
within 60 days of adoption of a moratorium to receive public testimony and evidence
regarding adoption of the moratorium and adopting findings of fact supporting the
moratorium. This public hearing has been noted and scheduled for August 21, 2012. Attach
to this item are (a) a Resolution stating proposed Findings of Fact; (b) a memorandum
discussing the issues and applicable procedures, and setting forth record documents
generated to date. Additional materials of record described in the Memorandum were
previously submitted with the August 21, 2012 council agenda packet and are on file with
the City Clerk's office. Following the public hearing the City Council may adopt the proposed
Resolution as is, or may modify the Findings of Fact to conform to any modification made to
the moratorium.
Resolution X Ordinance Other
(specify)
Contract: Mail to:
Contract Term: Amount: Expiration Date:
Insurance Required? No
Funding
Source: Phone:
APPROVED FOR
SUBMITTAL: dA4vt &eftr•Lit City Manager
STAFF RECOMMENDATION:
•
Adopt Resolution to include Findings of Fact conforming to and supporting scope of
moratorium regarding adult entertainment.
BOARD /COMMISSION RECOMMENDATION:
ATTACHMENTS:
Click to download
❑ Resolution
❑ 2012 -026 Six Month Moratorium; Adult Entertainment; Set Hearing Date
❑ memo re moratorium findings
•
RESOLUTION NO. R -2012-
A RESOLUTION adopting Findings of Fact supporting a six -month moratorium, enacted July
17, 2012 pursuant to emergency Ordinance No. 2012 -26, prohibiting the
filing, receipt, processing and approval of land use applications for
establishment and operation of adult entertainment and adult entertainment
businesses; exempting businesses for which a complete application was
pending on the effective date of the moratorium or which were legally in
existence at such time; directing development of comprehensive zoning
and business regulations for such uses; providing that the moratorium shall
be in existence through January 15, 2013; and declaring an emergency
providing for immediate effective date.
WHEREAS, pursuant to RCW 36.70A.390 and RCW 35.63.200, the City Council of the
City of Yakima by unanimous vote of those present on July 17, 2012 adopted Ordinance No.
2012 -26 imposing a moratorium for six months prohibiting applications for, and approvals of,
land uses for establishment and operation of adult entertainment and adult entertainment
businesses, and
WHEREAS, RCW 36.70A.390 and RCW 35.63.200 require the City Council to hold a
public hearing within sixty days after imposition of a moratorium to receive evidence and
testimony regarding imposition of the moratorium, to consider whether such moratorium should
be modified or continue in effect as originally adopted, and to adopt findings of fact supporting
such decision; and
WHEREAS, the City Council has held the required public hearing on September 4, 2012
pursuant to notice duly published, and having considered all evidence and testimony presented,
hereby makes the following
Findings of Fact
1. The City Council of the City of Yakima has authority pursuant to RCW 36.70A.390
and RCW 35.63.200 to adopt a moratorium to preserve the status quo pending
development of comprehensive land use controls and regulations, health and safety
regulations, and business licensing or registration regulations and procedures,
concerning adult entertainment and adult entertainment businesses.
1
2. The city council is committed to protecting the general welfare of the city through the •
9 9 tY 9
enforcement of laws prohibiting obscenity, indecency, and sexual offenses while
preserving constitutionally protected forms of expression.
3. The city has made a detailed review of the national and state record, including
studies from the cities of Austin, Texas, Garden Grove, California, and Los Angeles,
California, and Seattle, Des Moines, Federal Way, Centralia and Bellevue in the
State of Washington. The city is continuing to examine records and reports of
various cities, and court decisions regarding adult entertainment uses, including
adult retail establishments. The city council finds that adult entertainment uses,
including adult retail establishments and businesses, require special supervision
from public safety agencies in order to protect and preserve the health, safety, and
welfare of the patrons and employees of said business as well as the citizens of the
city.
4. The city council finds that concerns about crime and public sexual activity generated
and /or occurring within or near adult entertainment and adult entertainment
businesses are legitimate, substantial and compelling concerns of the city which
demand reasonable regulation.
5. The city council finds that adult entertainment and adult entertainment businesses,
due to their nature, have secondary adverse impacts upon the health, safety, and
welfare of the citizenry through increases in crime and opportunity for spread of
sexually transmitted diseases.
6. There is convincing documented evidence that adult entertainment and adult retail
establishments have a detrimental effect on both the existing businesses around
them and the surrounding residential areas adjacent to them, causing increased
crime, the downgrading of quality of life and property values and the spread of urban
blight. Reasonable regulation of the location of these facilities will provide for the
protection of the community, protect residents, patrons, and employees from the
adverse secondary effects of such facilities. The documented evidence and reports
concerning the association of adverse secondary effects with adult entertainment
and adult entertainment businesses include the following court decisions and
reports:
The court decisions of City of Renton v. Playtime Theatres, Inc , 475 U.S. 41
(1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v.
Glen Theatre, Inc., 501 U.S. 560 (1991), and in studies in other communities
including but not necessarily limited to: Adams County, Colorado, "Adams
County Nude Entertainment Study (1991 update); Austin, Texas, "Report on
Adult Oriented Businesses in Austin" (1986); Centralia, Washington, "Crime Risk
2
• in the Vicinity of a Sexually Oriented Business: A Report to the Centralia City
Attorney's Office — Revised" (2004); Chattanooga, Tennessee, "Community
Protections Committee's Final Report on Vice in Hamilton County with
Recommendations" (1997); Garden Grove, California, "Final Report to the City of
Garden Grove: The Relationship Between Crime and Adult Business Operations
on Garden Grove Boulevard" (1991); Cleveland, Ohio, Special Investigative Unit
Report (1977); Dallas, Texas, "An Analysis of the Effects of SOBs on the
Surrounding Neighborhoods in Dallas, Texas" (1997); Des Moines, Washington,
"Des Moines Adult Use Study" (1984); El Paso, Texas, "Effects of Adult
Entertainment Businesses on Residential Neighborhoods" (1986); Ellicottville,
New York, "Adult Business Study" (1998); Fort Worth, Texas, "Survey of
Appraisers Fort Worth & Dallas Effects of Land Uses on Surrounding Property
Values" (2004); Indianapolis, Indiana, "Adult Entertainment Businesses in
Indianapolis" (1984); Los Angeles, California, "Study of the Effects of the
Concentration of Adult Entertainment Establishments in the City of Los Angeles"
(1977); Minneapolis, Minnesota, "An Analysis of the Relationship Between Adult
Entertainment Establishments, Crime, and Housing Values" (1980); State of
Minnesota, "Report of the Attorney General's Working Group on the Regulation
of Sexually Oriented Businesses" (1989); Newport News, Virginia, "Adult Use
Study" (1996); New York City, New York, "Adult Entertainment Study" (1994),
"Report on the Secondary Effects of the Concentration of Adult Use
Establishments in the Times Square Area" (1994), Oklahoma City, Oklahoma,
"Adult Entertainment Businesses in Oklahoma City: A Survey of Real Estate
Appraisers" (1986); Phoenix, Arizona, "Adult Business Study" (1979); Seattle,
Washington, "Adult Cabarets in Seattle" (2006),
7. The city recognizes that adult entertainment and adult retail establishments and
businesses, due to their very nature, have serious objectionable operational
characteristics, particularly when located in close proximity to residential
neighborhoods, day care centers, religious facilities, public parks, schools, and
public facilities open to families, such as post offices and medical clinics, and
thereby having a deleterious impact upon the quality of life in the surrounding areas.
It has been acknowledged by courts and communities across the nation that state
and local governmental entities have a special concern in regulating the operation of
such businesses under their jurisdiction to ensure the adverse secondary effects of
the establishments are minimized.
8. The moratorium adopted in Ordinance No. 2012 -26 is intended to preserve the
status quo to enable the city to develop and implement a comprehensive regulation
and land use controls to protect the general public health, safety, and welfare of the
citizenry of the city through the regulation of the location of adult entertainment and
adult entertainment businesses. The regulation and controls to be developed are
3
intended to control health, safety, and welfare issues, to prevent decline in •
neighborhood conditions in and around adult entertainment and adult entertainment
businesses, and to isolate dangerous and unlawful conduct associated with these
facilities.
9. It is not the intent of Ordinance No. 2012 -26 to suppress any speech activities
protected by the First Amendment to the United States Constitution, or Article 1,
Section 5 of the Washington State Constitution, but to provide an opportunity to
develop and implement content - neutral legislation which addresses the negative
secondary impacts of adult entertainment and adult retail establishments.
10. It is not the intent of the city council to condone or legitimize the distribution of
obscene material, and the city council recognizes that state and federal law prohibits
the distribution of obscene materials.
11. The city council, at its duly advertised public hearing on August 21, 2012, considered
the subject matter of adult entertainment and adult entertainment businesses, at
which public hearing the city council received comments from the public on that
subject matter, which the city council believes to be true, and which, together with
the findings heretofore set forth, form the basis for the adoption of these Findings of
Fact and the Resolution herein.
12. The City Council finds and determines that the City of Yakima needs time to
consider additional zoning regulations, health and safety regulations, and business
licensing regulations which would deal specifically with adult entertainment and adult
entertainment businesses within the City of Yakima, and the City Council therefore
finds and determines that the moratorium for the term of six months adopted and
implemented in Ordinance No. 2012 -26, commencing on July 17, 2012 and
extending through January 15, 2013, is necessary and appropriate in order to study
the issues and to consider adopting appropriate regulations.
13. The City Council finds and determines that imposition of the moratorium adopted
pursuant to Ordinance No. 2012 -26 is necessary to (a) provide the City with an
opportunity to study the issues regarding siting, zoning and regulation of adult
entertainment and adult entertainment businesses within the City of Yakima and to
prepare appropriate revisions to the City's codes and regulations; (b) to protect the
health, safety and welfare of the citizens of Yakima by avoiding and ameliorating
adverse secondary effects associated with adult entertainment and adult
entertainment businesses within the City of Yakima; and (c) to avoid applicants
4
• possibly establishing vested rights contrary to and inconsistent with any revisions the
City may make to its regulations and codes as a result of the City's study of this
matter.
14. The City Council finds, determines and concludes that an emergency exists
justifying emergency adoption of Ordinance No 2012 -26, to wit: the United States
District Court for the Eastern District of Washington in the case captioned Muffett v.
City of Yakima, et at., Case No. CV -10- 3092 -RMP, issued a decision on July 17,
2012. The decision held, in part, that the City of Yakima is permanently enjoined
from enforcing the compatibility requirement of YMC 15.02.020 and 15.04.020 with
respect to conduct protected by the First Amendment unless and until the
compatibility provision is modified to conform to constitutional standards" in a
manner consistent with the court's decision. As a result of the court's ruling striking
down the aforementioned provisions of the current Yakima Municipal Code
provisions pertaining to adult business and adult entertainment, the City does not
have code provisions to adequately address the various impacts to public health,
safety, morals and general welfare that these uses present. The effects of such
decision declaring such code provisions to be unenforceable and enjoining use of
such codes to regulate adult businesses and adult entertainment, would include,
inter alia, allowing locations for adult businesses and adult entertainment without the
ability to develop or implement appropriate objective standards governing such
locations within the City. This is likely to result in probable significant unmitigated
public health, safety, criminal and environmental impacts on adjacent land uses,
including but not limited to schools, churches and public property such as parks,
residential neighborhoods. Neither City staff nor the Planning Commission have had
sufficient opportunity to review the effects of such Act or to formulate, prepare and
recommend appropriate zoning regulations, health and safety regulations, and
business licensing regulations which would deal specifically with adult entertainment
and adult entertainment businesses within the City of Yakima. The immediate
imposition of this moratorium pursuant to Ordinance No. 2012 -26 will preserve the
status quo to enable the City to further study the adverse secondary effects of adult
entertainment and adult entertainment businesses and to devise appropriate zoning
and regulatory controls to address the effects of such uses.
15. The City Council finds and determines that the moratorium adopted and
implemented pursuant to Ordinance No. 2012 -26 should remain in effect according
5
to its terms, and that such is in the best interests of residents of the City of Yakima •
and will promote the general health, safety and welfare; therefore
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
1. The Findings of Fact set forth above are hereby adopted as the Findings of Fact
supporting the adoption, implementation and continuation of the moratorium adopted
July 17, 2012 pursuant to Ordinance No. 2012 -26 according to its terms.
2. The City Manager of the City of Yakima is hereby authorized and directed to perform
those duties and functions set forth in Ordinance No. 2012 -26, including but not
limited to, development of proposed comprehensive land use, licensing, and health
and safety regulations pertaining to adult entertainment and adult entertainment
businesses and any issue ancillary thereto.
ADOPTED BY THE CITY COUNCIL this 4th day of September, 2012.
Micah Cawley, Mayor
ATTEST:
City Clerk
6
• ORDINANCE NO. 2012 - 26
AN ORDINANCE of the City of Yakima, Washington, adopting a six -month
moratorium of the filing and acceptance of development
applications for, and the location of, land uses operating or
conducting- adult entertainment or adult entertainment
business; exempting land uses for which a complete
development application was pending upon the effective
date of this ordinance or which were legally in existence at
such time; directing development of comprehensive zoning
and business regulations pertaining to adult entertainment
and adult entertainment businesses; providing that the
moratorium shall be in effect for six months, through January
15, 2013; setting public hearing on moratorium for August
21, 2012; and declaring . an emergency providing for
immediate effective date.
WHEREAS, in conformance with the Growth Management Act of the State
of Washington, the City of Yakima ( "City ") is required to develop, adopt,
implement and review a comprehensive plan, as well as a zoning code and
development regulations consistent with that plan; and
WHEREAS, the City has previously adopted ordinances codified at
Chapter 6.10 YMC prohibiting nudity and semi -nudity on premises or businesses
licensed by the Washington State Liquor Control Board for the service, sale or
consumption of alcoholic beverages; and ordinances codified at Chapter 5.30
YMC regulating dance studios, and defining "adult entertainment;" and
ordinances codified at YMC 15.09.200 defining "adult business" and "adult
entertainment," and establishing requirements and land use controls for such
businesses and entertainment; and
WHEREAS, the City has received application in the past for adult
entertainment and adult business, processed under the provisions referenced
above, which application is currently subject to judicial review, and the City of
Yakima may receive in future applications for adult entertainment and adult
businesses that would significantly increase the amount of commercial space
characterized by such uses and located within the City; and
WHEREAS, the United States District Court for the Eastern District of
Washington in the case captioned Muffett v. City of Yakima, et al., Case No. CV-
10- 3092 -RMP issued a decision on July 17, 2012. The decision held, in part,
that the City of Yakima "is permanently enjoined from enforcing the compatibility
requirement of YMC 15.02.020 and 15.04.020 with respect to conduct protected
by the First Amendment unless and until the compatibility provision is modified to
1
conform to constitutional standards" in a manner consistent with the court's •
decision; and
WHEREAS, as a result of the court's ruling striking down the
aforementioned provisions of the current Yakima Municipal Code provisions
pertaining to adult business and adult entertainment, the City does not have code
provisions to adequately address the various impacts to public health, safety,
morals and general welfare that these uses present. The effects of such decision
declaring, such code provisions to be unenforceable and enjoining use of such
codes to regulate adult businesses and adult entertainment, would include, inter
aOia, allowing locations for adult businesses and adult entertainment without the
ability to develop or implement appropriate objective standards governing such
locations within the City. This is likely to result in probable significant unmitigated
public health, safety, criminal and environmental impacts on adjacent land uses,
including but not limited to schools, churches and public property such as parks,
residential neighborhoods; and
WHEREAS, other cities in the state and region, and elsewhere in the
country, have adopted ordinances regulating adult businesses and adult
entertainment uses, based upon evidence of the negative secondary effects of
such uses; and
WHEREAS, residents of the City of Yakima would be well served if the City
Council and City staff could more fully address and understand the potential
negative secondary effects of such adult businesses and adult entertainment
uses, in the form of health, safety, economic, environmental and aesthetic
impacts that these uses could impose upon neighboring properties and the
community as a whole; and
WHEREAS, the City needs to review existing information on the negative
secondary effects of adult business and adult entertainment uses, and to review
the City's codes and ordinances in a comprehensive fashion to determine
whether they sufficiently address the secondary effects of such uses and
appropriately balance the interests of adult businesses and adult entertainment
providers, and
WHEREAS, the City needs more time to consider properly and carefully the
location and regulation of adult businesses and adult entertainment; and
WHEREAS, based on a wide range of testimony and documents presented
to other cities and counties by law enforcement agencies and the public, the City
Council finds that adult entertainment businesses and adult entertainment,
although afforded some constitutional protection, often result in undesirable
secondary effects, including criminal and other unlawful activities such as
prostitution, narcotics and liquor law violations, breaches of the peace, assaults
and sexual contact between entertainers and patrons; and
2
•
WHEREAS, the City Council finds that the City's land use integrity and the
state Growth Management Act planning process will suffer significant harm
unless applications for licenses, permits and approvals for adult businesses and
adult entertainment are halted until the planning process is completed; and
WHEREAS, the City Council finds that protection of the health, safety and
welfare supports establishment of a moratorium on applications for licenses,
permits and approvals for adult businesses and adult entertainment, as such
terms are defined in the Yakima Municipal Code, including but not limited to,
Chapter 5.30 YMC and YMC 15.06.200; and
WHEREAS, RCW 35.63.200 and RCW 36.70A.390 authorize the City to
adopt a moratorium on development permits and approvals for adult businesses
and adult entertainment and thereafter to hold a public hearing on the
moratorium to be held within sixty (60) days of the commencement of the
moratorium; and
WHEREAS, the City Council finds that the enactment of this Ordinance
constitutes and emergency due to the decision of the federal district court in
Muffett v. City of Yakima, et al. described above, which decision invalidated,
declared unenforceable and enjoined the application of existing City codes
pertaining to adult businesses and adult entertainment, leaving the City without
effective means to regulate such uses; and
WHEREAS, the City Council further finds and determines that enactment
of this Ordinance constitutes an emergency due to challenges to the provisions
of existing City codes pertaining to adult businesses and adult entertainment
concerning the provisions and procedures of YMC 15.09.200 regarding findings
of compatibility of such uses to the surrounding neighborhoods, and that existing
City code and regulations do not adequately address the potential health, safety,
environmental, zoning, infrastructure, law enforcement and community impacts
associated with adult businesses and adult entertainment located and likely to be
located in the City of Yakima; and
WHEREAS, this emergency is further supported by the unnecessary
burden and infringement placed on businesses and other persons desiring to
process applications for adult entertainment and adult entertainment businesses
under a regulatory process that is ill- suited to review the health, safety,
environmental, zoning, infrastructure, law enforcement and community issues
involved in such applications; and
WHEREAS, a moratorium on the acceptance, processing and issuance of
permits for adult businesses and adult entertainment is necessary to enable the
City Council to formulate a comprehensive permitting process which addresses
3
impacts, mitigation requirements, zoning for potential siting, other •
9 p 9,
requirements and standards to protect and benefit the public interest; and
WHEREAS, the potential adverse effects on the public health, property,
safety and welfare, as discussed above, justify the declaration of an emergency;
and
WHEREAS, the City Council authorizes and directs the City Manager to
review existing City codes and zoning regulations, further study the effects
resulting from any approval of adult businesses and adult entertainment, prepare
comprehensive proposed amendments to the City codes and zoning regulations
to address the effects of such uses, to confer with community members and City
advisory commissions, including public hearing before the Planning Commission,
as appropriate, and to present recommended legislation addressing such issues
to the City Council for consideration and action; and
WHEREAS, the City Council finds and determines that a public hearing on
this moratorium should be held on August 21, 2012, whereupon the City Council
may adopt findings of fact in support of the adoption of this moratorium, or modify
the terms thereof; and
WHEREAS, notwithstanding the term of six months set forth above for the
moratorium adopted herein, this moratorium may be (a) modified by the City
Council in accordance with applicable law; (b) extended for additional term(s) of
six months upon action following public hearing and adoption of findings in
support thereof; (c) terminated by the City Council upon adoption of appropriate
zoning and regulatory codes; or (d) terminated by the City Council for any reason
deemed necessary or appropriate; now, therefore:
BE IT ORDAINED BY THE CITY OF YAKIMA:
Section 1. Moratorium Established. A moratorium is imposed upon the
filing with the City of Yakima of any applications for licenses, permits and
approvals for adult businesses and adult entertainment, as those terms are
defined and used in the City of Yakima Municipal Code and below, and for adult
entertainment and adult entertainment business as those terms are commonly
understood.
Section 2. Exemption — Vested Rights. This moratorium specifically
exempts any application for permit deemed complete as of the effective date of
this moratorium, and any adult entertainment business or use lawfully existing as
of the effective date of this moratorium.
Section 3. Public Hearing. Pursuant to RCW 36.70A.390 and RCW
35.63.200, a public hearing will be held on Tuesday, August 21, 2012, for the
4
• purpose of taking testimony and, if this ordinance is passed, adopting written
findings and conclusions justifying the moratorium established by this ordinance.
Section 4. Effective Period of Moratorium. The moratorium adopted by
this ordinance shall become effective immediately upon passage and approval of -
this ordinance, and shall remain in effect for six months, through January 15,
2013, subject to adoption of findings and conclusions as provided in Section 3
above. This moratorium shall also terminate upon the adoption of permanent
regulations governing the location, land use and regulation of adult businesses
and adult entertainment. Notwithstanding the above, this moratorium may be
extended as provided in RCW 36.70A.390 and RCW 35.63.200.
Section 5. Direction to Develop Comprehensive Adult Entertainment
Regulation Ordinance. The City Council hereby authorizes and directs the City
Manager to develop a comprehensive adult entertainment and adult
entertainment business ordinance which shall be presented to the City Council
on the earliest possible date. The City Manager is encouraged to seek input
from appropriate City staff, business representatives, other commissions and
boards of the City, other governmental agencies and members of the public.
Section 6. Subjects for Consideration. Without limitation, the City
Manager is encouraged to consider all subjects relevant to the regulation of adult
businesses and adult entertainment, including but not limited to: appropriate
business license requirements; regulation of conduct of adult entertainment and
adult entertainment businesses; law enforcement effects and needs; safety of
employees, patrons and the public; community standards of morality and
decency; appropriate or necessary zoning or siting requirements; appropriate or
necessary building requirements; issues of free speech and signage intended for
advertising of adult entertainment and adult entertainment businesses; and any
other matter deemed necessary or appropriate to preserve, promote and protect
the general health, safety and welfare.
Section 7. Declaration of Emergency. Pursuant to Article VI Section 2
of the Charter of the City of Yakima, the City Council finds, determines and
declares that - this ordinance is an emergency ordinance to provide for the
immediate preservation of the public peace, property, health or safety. The
unanimous vote of the City Council shall be necessary for the passage of this
emergency ordinance.
Section 8. Severability. If any section, sentence, clause or phrase of
this ordinance should be held to be invalid or unconstitutional by a court of
competent jurisdiction, such invalidity or unconstitutionality shall not affect the
validity of constitutionality of any other section, sentence, clause or phrase of this
ordinance.
5
Section 9. Effective Date. This ordinance shall be in full force and •
effect immediately upon its passage and approval as provided by law and the
City Charter.
PASSED BY THE CITY COUNCIL, signed and approved this 17 day of
July, 2012.
Micah Cawley, Mayor
ATTEST:
4/4 ,4■141
i I
City Clerk � �'
Effective Date: July 17, 2012 � 2 , 0
‘� WASN``���
Publication Date: July 20, 2012
Ordinance Approved by Unanimous Vote
of Council Members: July 17, 2012
6
CITY OF YA]KIMA
•
LEGAL
DEPARTMENT
200 South Thins Sineet, Yakima, Washington 98901 (509)575 -6030 Fax (509)575 -6160
MEMORANDUM
August 7, 2012
TO: Honorable Mayor and City Council
Tony O'Rourke, City Manager
FROM: Mark Kunkler, Senior Assistant City Attorney
SUBJECT: Adult Entertainment — Moratorium — Findings of Fact — Record
A. Introduction. A public hearing has been set for September 4, 2012 to consider
the Moratorium adopted pursuant to Ordinance No. 2012 -26 adopted July 17, 2012
regarding adult entertainment and adult entertainment businesses. Under state statutes
authorizing imposition of moratoria, the legislative body adopting a moratorium must
hold a public hearing within sixty days of adoption, receive public comment and /or
evidence, and adopt Findings of Fact modifying the scope of the moratorium or
maintaining the moratorium as originally adopted. RCW 36.70A.390 and RCW
35.63.200.
The purpose of this Memorandum is to provide a general background of the issues
involved in the arena of adult entertainment, identify possible areas of regulation, and
document the "record" obtained to date in support of the continuation of the moratorium.
B. Existing City Codes. The City of Yakima has code provisions defining and
regulating adult entertainment and adult entertainment businesses. These are codified
at YMC 19.09.200 (Adult Business), Chapter 6.10 YMC (prohibiting nudity and semi -
nudity on premises or businesses licensed by the Washington State Liquor Control
Board), and Chapter 5.30 YMC (Dance Studios).
YMC 15.09.200 states applicable definitions for adult businesses, imposes limitations in
terms of minimum 500 -foot distance from churches, public schools, private schools, day
care centers, public parks, public libraries, residential zoning districts and other adult
entertainment business establishments. The existing code imposes signage
requirements, hours of operation and building standards.
The code also provides a "review" mechanism for new applications for adult
entertainment businesses. YMC 15.09 200(C)(1) states:
Memorandum to Honorable Mayor and Members of the City Council
•
August 17, 2012
Page 2
Adult business uses shall be considered Class (2) uses, requiring Type (2)
review, in and only in the CBD (central business district), GC (general
commercial) zoning districts; and as a Class (3) use, requiring Type (3) review, in
and only in the M -1 (light industrial) zoning district when applicable development
standards of this section are met:
The effect of the above section is to subject the review of an application for an adult
business use to the land use review processes of Chapters 15.04, 15.14 and 15.15
YMC. YMC 15.04.020 provides in part:
B. Class (2) uses are generally permitted in the district. However, the
compatibility between a Class (2) use and the surrounding environment cannot
be determined in advance, and occasionally a Class (2) use may be incompatible
at a particular location. Therefore, a Type (2) review by the administrative official
is required in order to promote compatibility with the intent and character of the
district and the policies and development criteria of the Yakima urban area
comprehensive plan. The procedures in YMC Chapter 15.14 shall be used to
review and evaluate Class (2) uses. In certain circumstances, the administrative
official may require that a Class (2) use undergo a Type (3) review, as provided
within this title.
C. Class (3) uses are generally not permitted in a particular district, but may be
allowed by the hearing examiner after a Type (3) review and public hearing. The
hearing examiner may approve, deny, or impose conditions on the proposed
land use and site improvements to promote compatibility with the intent and
character of the district and the policies and development criteria of the Yakima
urban area comprehensive plan. The procedures in YMC Chapter 15.15 shall be
used to review and evaluate Class (3) uses or Class (2) uses that have been
forwarded to the hearing examiner for review.
Likewise, the definitions in YMC 15.02.020 provide:
"Class (2) uses" are those uses set forth and defined in the text and tables of YMC
Chapter 15.04 and are generally permitted throughout the district. However, site plan
review by the administrative official is required in order to ensure compatibility with the
0 Memorandum to Honorable Mayor and Members of the City Council
August 17, 2012
Page 3
intent and character of the district and the objectives of the Yakima urban area
comprehensive plan.
"Class (3) uses" are those uses set forth and defined in the text and tables of YMC
Chapter 15.04 and are generally incompatible with adjacent and abutting property
because of their size, emissions, traffic generation, neighborhood character or for other
reasons. However, they may be compatible with other uses in the district if they are
properly sited and designed. Class (3) may be permitted by the hearing examiner when
he determines, after holding a public hearing, that the use complies with provisions and
standards: and that difficulties related to the compatibility, the provisions of public
services, and the Yakima urban area comprehensive plan policies have been
adequately resolved.
(Emphasis added.)
C. Court Decision — Muffett v., City of Yakima, et al.
It was the underlined portions of the above code sections that were found to be unconstitutional
and unenforceable by the federal court judge in her ruling in Muffett v. City of Yakima, et al.,
Case No. CV -10- 3092 -RMP (E.D. Wash. July 17, 2012). In brief, the above code sections vest
the "administrative official" and hearing examiner with discretion, unlimited by sufficient
objective standards, with the ability and duty to determine and define "compatibility." The court
held that adult entertainment or "nude dancing" was a form of speech protected by the First
Amendment. Because free speech issues are invoked, the city's codes and procedures are
subject to heightened scrutiny. The court ruled in part:
This compatibility requirement, by its plain terms, allows an administrative official to
reject a proposed use based on its not being in "harmony" with the "character of the
district." Such subjective standards provide no basis for a Court sitting in review to
determine whether the standard has been applied correctly. The compatibility standard
is neither objective nor narrow as required under Shuttlesworth, 394 U.S. at 149; see
also Diamond, 29 F.Supp.2d at 649 -50. Accordingly, the [city's code] requirement that
adult businesses undergo a compatibility review is an unconstitutional prior restraint.
Muffett, Decision at 18.
Memorandum to Honorable Mayor and Members of the City Council •
August 17, 2012
Page 4
The judge's ruling further concluded that the City of Yakima "is permanently enjoined from
enforcing the compatibility requirement of YMC 15.02.020 and 15.04.020 with respect to
conduct protected by the First Amendment unless and until the compatibility provision is
modified to conform to constitutional standards" in a manner consistent, with the court's
decision. Muffett, Decision at 20 -21.
D. Effect of Decision.
The Court's ruling in Muffett v. City of Yakima, et al. calls into question the ability of the city to
limit adult entertainment business uses to the CBD (central business district), GC (general
commercial) zoning districts; and the M -1 (light industrial) zoning district as set forth in YMC
15.09.200(C)(1) above. The designated zoning districts named in that section are specifically
tied to the Class 2 or Class 3 review processes. Consequently, it is necessary to develop
objective standards to delineate allowable locations or zoning districts for adult entertainment
and adult entertainment businesses.
E. Secondary Effects of Adult Entertainment.
The City of Yakima is entitled to rely on facts, records and reports prepared by other
jurisdictions when analyzing secondary effects associated with adult entertainment and adult
entertainment businesses. City of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 106 S.Ct.
925 (1986). There are several court decisions and reports describing adverse secondary
effects associated with adult entertainment and adult entertainment businesses. The court
decisions and studies conducted by other jurisdictions describe adverse secondary effects of
adult entertainment and adult entertainment businesses, including but not limited to, increased
crime, increased sex - related crime rates, lowering of property values. See subsection (G),
"Record of Documents for Public Hearing," below.
F. Recommendation.
In view of the recent decision in Muffett v. City of Yakima, et al., and in view of the need to
study and develop comprehensive land use and regulatory controls regarding adult
entertainment and adult entertainment businesses, it is staffs recommendation that the
moratorium as originally adopted remain in effect as enacted.
Issues regarding adult entertainment and adult entertainment businesses are tentatively set for
discussion before the Planning Commission on September 12, 2012, with a public hearing
before the Planning Commission on October 10, 2012.
• Memorandum to Honorable Mayor and Members of the City Council
August 17, 2012
Page 5
G. Record of Documents for Public Hearing.
The following documents serve as the record to date for Council consideration regarding the
moratorium adopted July 17, 2012 in Ordinance No. 2012 -26:
(a) Resolution No. 2012- adopting Findings of Fact for Moratorium regarding
adult entertainment adopted pursuant to Ordinance No. 2012 -26.
(b) Ordinance No. 2012 -26 imposing moratorium on adult entertainment uses,
adopted as an emergency ordinance on July 17, 2012.
(c) Decision of the Court in Muffett v. City of Yakima, et al., Case No. CV -10 -3092-
RMP (E.D. Wash.), issued' on July 17, 2012.
(d) Centralia, Washington, "Crime Risk in the Vicinity of a Sexually Oriented
Business: A Report to the Centralia City Attorney's Office — Revised" (2004).
(e) Des Moines, Washington, "Adult Use Study" (1984).
(f) Bellevue, Washington, "Location of Adult Entertainment Uses — Background
Materials" (1988).
(g) Kelso, Washington, "Zoning for Sexually Oriented Businesses" (1993).
(h) Kent, Washington, "Adult Use Zoning Study" (1982).
(i) Seattle, Washington, "Adult Cabarets in Seattle" (2006).
(j) Fort Worth, Texas, "Effects of Land Uses on Surrounding Property Values"
(2004).
(k) Austin, Texas, "Report on Adult Oriented Businesses in Austin" (1986).
(I) Garden Grove, California, "Final Report to the City of Garden Grove: The
Relationship Between Crime and Adult Business Operations on Garden Grove
Boulevard" (1991).
(m) Los Angeles, California, "Crime Related Secondary Effects of Sexually- Oriented
Businesses: Report to the City Attorney" (2007).
In addition to the above, the City of Yakima takes notice of the following cases and reports,
some of which are specifically referenced above and attached to this memorandum, regarding
adverse secondary effects of adult entertainment and adult entertainment businesses, together
with other court decisions and reports that will be subject to review:
Memorandum to Honorable Mayor and Members of the City Council
•
August 17, 2012
Page 6
Court decisions of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young
v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre, Inc., 501
U.S. 560 (1991), and others.
Studies in other communities including but not necessarily limited to:
Adams County, Colorado, "Adams County Nude Entertainment Study (1991 update);
Austin, Texas, "Report on Adult Oriented Businesses in Austin" (1986);
Centralia, Washington, "Crime Risk in the Vicinity of a Sexually Oriented Business: A
Report to the Centralia City Attorney's Office — Revised" (2004);
Chattanooga, Tennessee, "Community Protections Committee's Final Report on Vice in
Hamilton County with Recommendations" (1997);
Garden Grove, California, "Final Report to the City of Garden Grove: The Relationship
Between Crime and Adult Business Operations on Garden Grove Boulevard" (1991);
Cleveland, Ohio, Special Investigative Unit Report (1977);
Dallas, Texas, "An Analysis of the Effects of SOBs on the Surrounding Neighborhoods
in Dallas, Texas" (1997);
Des Moines, Washington, "Des Moines Adult Use Study" (1984);
El Paso, Texas, "Effects of Adult Entertainment Businesses on Residential
Neighborhoods" (1986);
Ellicottville, New York, "Adult Business Study" (1998);
Fort Worth, Texas, "Survey of Appraisers Fort Worth & Dallas Effects of Land Uses on
Surrounding Property Values" (2004);
Indianapolis, Indiana, "Adult Entertainment Businesses in Indianapolis" (1984);
Los Angeles, California, "Study of the Effects of the Concentration of Adult
Entertainment Establishments in the City of Los Angeles" (1977);
Minneapolis, Minnesota, "An Analysis of the Relationship Between Adult Entertainment
Establishments, Crime, and Housing Values" (1980),
• Memorandum to Honorable Mayor and Members of the City Council
August 17, 2012
Page 7
State of Minnesota, "Report of the Attorney General's Working Group on the Regulation
of Sexually Oriented Businesses" (1989);
Newport News, Virginia, "Adult Use Study" (1996);
New York City, New York, "Adult Entertainment Study" (1994); "Report on the
Secondary Effects of the Concentration of Adult Use Establishments in the Times
Square Area" (1994);
Oklahoma City, Oklahoma, "Adult Entertainment Businesses in Oklahoma City: A
Survey of Real Estate Appraisers" (1986);
Phoenix, Arizona, "Adult Business Study" (1979);
Seattle, Washington, "Adult Cabarets in Seattle" (2006).